Plaintiffs Southern Nuclear Operating Company, Alabama Power Company, and Georgia Power Company (collectively, “plaintiffs”) filed suit in the Court of Federal Claims (“Claims Court”) against the United States, alleging that the United States Department of Energy (“Energy”) had partially breached contracts by failing to accept spent nuclear fuel (“SNF”) for storage beginning on January 31, 1998. The Claims Court granted summary judgment for plaintiffs on liability. It then held a trial to determine damages for storage costs incurred that would not have been necessary if Energy had fulfilled its obligation to begin accepting SNF in 1998.
S. Nuclear Operating Co. v. United States,
BACKGROUND
In January 1983, Congress passed the Nuclear Waste Policy Act of 1982, Pub.L. *1299 No. 97-425, 96 Stat. 2201 (codified as amended at 42 U.S.C. §§ 10101-270 (1987)) [hereinafter NWPA], under which all nuclear utilities entered into a Standard Contract with Energy. These contracts obligated the utilities to pay fees into the Nuclear Waste Fund. In return, Energy was obligated to pick up and store the utilities’ SNF and high-level radioactive waste (“HLW”). The NWPA and Standard Contract obligated Energy to begin pick up by January 31, 1998. However, the contracts also contained an unavoidable delays clause. In 1987, Congress amended the NWPA, requiring Energy to develop only one permanent geologic repository for nuclear waste and forbidding Energy from constructing an interim storage facility until the Nuclear Regulatory Commission authorized the permanent facility. In part because of these constraints, Energy was unable to begin accepting SNF in 1998 as required by the statute and by contract.
On July 29, 1998, plaintiffs filed their complaint in the Claims Court, alleging partial breach of contract. In 2004, the court granted summary judgment on liability, finding that the government had partially breached the Standard Contract by failing to begin accepting SNF in January 1998. There is no issue on appeal as to liability; liability in these SNF cases has been established.
See Neb. Pub. Power Dist. v. United States,
I
In 2005, the Claims Court held a trial on damages. The plaintiffs sought “reimbursement of their actual costs spent mitigating [Energy’s] delays.”
S. Nuclear,
The plaintiffs alleged that they incurred additional storage costs at three different power plants: Plant Hatch, Plant Farley, and Plant Vogtle. 1 At Plant Hatch, they sought damages for the cost of constructing an Independent Spent Fuel Storage Installation (“ISFSI”) as well as the cost of dry storage casks for the ISFSI and the expenses incurred in loading the casks onto the ISFSI. ISFSIs are essentially concrete pads constructed to store dry storage casks and located adjacent to (rather than inside) reactor buildings. Dry storage casks are steel containers designed to hold (and prevent leakage of) SNF when it is removed from the reactor. At Plant Farley, plaintiffs also sought reimbursement for an ISFSI as well as for storage casks and loading costs. Lastly, at Plant Vogtle, plaintiffs sought damages for the cost of “reracking.” Reracking is a method of increasing wet storage (i.e., storage inside the reactor pool), as opposed to using dry storage casks. It involves purchasing higher density storage *1300 racks so that more SNF can be stored in the wet pools adjacent to the core rather than transferred to a dry storage installation (like an ISFSI) outside of the reactor building. The United States argued that these storage costs at all three plants would also have been incurred in the non-breach world (i.e., if Energy had performed) and that, therefore, the government’s breach did not cause the plaintiffs to make these expenditures.
However, determining what costs would have been incurred absent Energy’s breach proved difficult because the Standard Contract itself did not specify a rate at which Energy was obligated to pick up SNF. Instead, the Standard Contract required Energy to issue annual capacity reports (“ACRs”), stating which plants would be granted pick-up allocations first and projecting how much SNF would be accepted by Energy. The ACRs, issued annually, included both an industry-wide pick-up rate and projected pick-up allocations for each individual plant. In 2008, we held in
Pacific Gas & Electric Co. v. United States,
At trial, the government argued that the court should use the 1991 ACR acceptance rates, approximately 900 metric tons of uranium (“MTU”) per year, as the rates required by the Standard Contract. The plaintiffs, conversely, urged the court to use a 3000 MTU per year acceptance rate to determine how much SNF Energy would have picked up in the non-breach world. Neither party advocated for the 1987 ACR rates, which ramped up to approximately 2650 MTU per year. The Claims Court explicitly declined to determine a particular contractual acceptance rate. Instead, the Claims Court concluded that “the reracking at Plant Vogtle and the dry storage at Plants Hatch and Farley would not have occurred if [Energy] had been performing at any reasonable rate [defined as between 2000 and 3000 MTU per year].”
S. Nuclear,
With respect to Plant Hatch, the plaintiffs conceded that two so-called “bathtub racks” (a type of wet storage used within the reactor building for storing SNF), which they purchased in the real world, would also have been purchased for $3,186,000 in the non-breach world and that during the period in question here they would have saved the costs ($419,800) of installing one of the two “bathtub racks.” The Claims Court offset the plaintiffs’ damage award by only $419,800, even though the Claims Court recognized that the bathtub racks at Plant Hatch would have been purchased absent Energy’s breach. The court awarded plaintiffs $3,186,000 for the purchase of these bathtub racks when totaling damages. On ap *1301 peal, both parties agree that the $8,186,000 award was made in error.
After trial, the United States filed a motion for reconsideration, arguing that the Claims Court should have determined a specific rate at which Energy was contractually obligated to accept SNF and that the court erred in stating that at the 1991 ACR rates plaintiffs would not have built additional storage. On November 1, 2007, the Claims Court denied the motion, reiterating that even if it had accepted the government’s proposed rate as set forth in the 1991 ACR, “the dry storage expenditures awarded would not have been incurred.”
S. Nuclear Operating Co. v. United States,
II
With respect to the unavoidable delays issue, the Claims Court held that the United States waived a defense based on the unavoidable delays clause of the Standard Contract. It found that the government “did not raise the unavoidable delays clause as an affirmative defense, nor contend that but for the mandamus order [issued by the District of Columbia Circuit], the unavoidable delays clause would be raised” in its pre-trial pleadings or at trial.
The United States timely appealed both the damage award and the unavoidable delays decision in 2008. We stayed the appeal until 2010 pending the outcomes of
Yankee Atomic Electric Co. v. United States,
Discussion
We review legal conclusions of the Claims Court, including contract interpretation, de novo.
Yankee Atomic,
I
As recognized by plaintiffs, “damages amounted to the costs Southern actually incurred to store SNF less the costs that *1302 Southern would have incurred to store SNF had [Energy] performed its contracts.” Appellee’s Br. 5. The United States argues on appeal that the Claims Court failed to apply the contractually mandated 1987 ACR rates to “determine precisely which costs that [plaintiffs] incurred [in the real world] would have been avoided in the non-breach world.” Appellants’ Br. 21. According to the government, remand is required as to Plant Hatch and Plant Vogtle under Yankee Atomic and Carolina Power & Light to allow discovery and expert testimony about plaintiffs’ hypothetical expenditures at the 1987 ACR rates. The United States concedes that remand is unnecessary to calculate damages at Plant Farley because the damage award would not be any different under the 1987 ACR rates.
The plaintiffs contend that remand is unnecessary because the damage award as to Plant Hatch and Plant Vogtle would not differ using the 1987 ACR rates. They argue that the Claims Court, in its reconsideration opinion, applied the 1987 ACR rates to determine damages at Plant Hatch and, in its initial opinion, concluded that the plaintiffs’ storage measures at all three plants would not have been necessary even at the 1991 ACR rates, which were more favorable to the government than the 1987 rates.
A
With respect to Plant Hatch, the government on appeal no longer challenges the Claims Court’s conclusion that the plaintiffs would not have constructed dry storage absent Energy’s breach. However, the government argues that the award should be reduced because of saved costs. These saved costs resulted from the fact that plaintiffs allegedly would have been required to employ certain alternative fuel management techniques at the 1987 ACR rates in the non-breach world to avoid building dry storage. In fact, the government asserts that the Claims Court itself recognized the necessity of alternative fuel management techniques when it stated that “with fuel management, bumwp adjustments, swaps, increase in pickups etc, ... dry storage would not have been built at Plant Hatch” in the non-breach world. Reconsideration Op. at 142 (emphasis added). Hence, it argues that the cost of these fuel management techniques was avoided in the real world and urges that remand is necessary for the Claims Court to calculate the costs of these techniques and deduct them from the final damage award.
The United States admits that it did not present any evidence to the Claims Court about what costs would have been avoided at Plant Hatch in the non-breach world (and hence should be offset from the damage award) at the 1987 ACR rates or any other rate. It explains that it did not do so because its position was that all of the costs allegedly incurred by plaintiffs at Plant Hatch (i.e., the ISFSI, dry storage casks, and the cost of loading the casks) would also have been incurred if Energy had performed at the 1991 rates, but that other avoided costs (i.e., fuel management techniques, burnup adjustments, etc.) would not have been incurred. The government claims that, had it known the 1987 rates were controlling, it would instead have agreed that dry storage would not have been necessary in the non-breach world but that the damage award should be offset by avoided costs. Although the government does not state precisely what these avoided costs would have been, it suggests that they would include, inter alia, the “fuel management [techniques], *1303 burnup adjustments, swaps, increase in pickups, etc.” mentioned by the Claims Court in its reconsideration opinion. Reconsideration Op., at 142.
At Plant Vogtle, the government argues that plaintiffs would have needed to perform a rerack in 2007 even if Energy had performed because the 1987 ACR rates did not grant any SNF pick-up allocations to Plant Vogtle until 2007, 2 and the plaintiffs therefore would have exceeded their storage capacity before Energy began accepting SNF. Therefore, it claims, remand is necessary for the Claims Court to determine whether the cost of the rerack should have been included in the damage award or whether plaintiffs would have incurred that cost anyway in the non-breach world (albeit at a later date). 3
The government asserts that
Yankee Atomic
and
Carolina Power
require use of the 1987 rate and require remand for the Claims Court to permit discovery, hear expert testimony, and thoroughly compare the expenditures in the breach and non-breach worlds at the 1987 ACR rates. In
Yankee Atomic,
we remanded because the Claims Court did not select
any
contractual rate and hence “did not acknowledge that ... causation ... depended on some comparison of the contractually-defined hypothetical world to the expenses actually incurred.”
As in Carolina Power, the Claims Court opinion here pre-dated the Pacific Gas decision. The government could not have been expected to predict our adoption of the 1987 rates. Whatever the merits of allowing the record to be reopened for the submission of evidence as to what would have occurred at the 1987 rates, we are bound by the Carolina Power decision. The latitude we have given to plaintiffs to reopen the record under Carolina Power must also be afforded to the government. However, we think that question should be addressed in the first instance by the Claims Court. Remand is appropriate so that the Claims Court, in the first instance, may consider the impact of Pacific Gas, Yankee Atomic, and Carolina Power on this particular case, and to determine whether the government should be allowed *1304 to reopen the record and engage in additional discovery or introduce new evidence (like expert reports and expert testimony) with respect to the costs that would have been incurred by plaintiffs at Plant Hatch and Plant Vogtle at the 1987 ACR rates. In this connection, we note the government’s remarkable silence about the nature and amount of the costs it alleges the plaintiffs avoided by constructing their storage facilities at Plant Hatch. In order for the Claims Court to determine whether to reopen the record in this case, it will be necessary for the government to be precise about the nature and amount of the avoided costs it claims were involved.
In requiring the government to identify such costs with particularity, we recognize that with respect to both claimed costs and avoided costs, plaintiffs bear the burden of persuasion. As we held in
Yankee Atomic,
“[b]eeause plaintiffs ... are seeking expectancy damages, it is incumbent upon them to establish a plausible ‘but-for’ world.”
The reason is that the “party incurring the relevant costs is in the best position to adduce and establish such proof.” 11 Arthur L. Corbin
&
Joseph M. Perillo,
Cor-bin on Contracts
§ 57.10 n. 15 (rev. ed.2005). Here, the plaintiffs are in the best position to determine both the costs they would have incurred and the costs they would have avoided. However, this does not mean the defendant is without any obligation. Plaintiffs cannot be expected to brainstorm every possible cost they would have saved in the non-breach world. Hence, a defendant must move forward by pointing out the costs it believes the plaintiff avoided because of its breach.
See Mech-Con Corp. v. West,
II
The Standard Contract includes a clause titled “Unavoidable Delays by Purchaser *1305 or [Energy],” which states, in pertinent part:
Neither the Government nor the Purchaser shall be liable under this contract for damages caused by failure to perform its obligations hereunder, if such failure arises out of causes beyond the control and without the fault or negligence of the party failing to perform. In the event circumstances beyond the reasonable control of the Purchaser or [Energy] — such as acts of God, or of the public enemy, acts of Government in either its sovereign or contractual capacity [etc] ... cause delay in the scheduled delivery, acceptance or transport of SNF and/or HLW ... the parties will readjust their schedules, as appropriate, to accommodate such delay.
J.A. 1047. Once it became clear to Energy that it would be unable to begin accepting SNF by January 1998 because of its inability to construct a permanent repository or interim storage facility, the agency issued its
Final Interpretation of Nuclear Waste Acceptance Issues,
60 Fed.Reg. 21,793 (May 3, 1995). Energy concluded that it “did not have an unconditional statutory or contractual obligation to accept [HLW and SNF] beginning January 31, 1998 in the absence of a repository or interim storage facility.”
Id.
at 21,793-94;
see also Ind. Mich. Power Co. v. Dep’t of Energy,
However, in
Indiana Michigan,
the District of Columbia Circuit held that Energy’s interpretation was contrary to the NWPA and found that the agency had an unconditional statutory obligation to begin accepting SNF by January 31, 1998.
In this case, purportedly out of fear that raising the “unavoidable delays clause” as a defense in the Claims Court would result in sanctions under the
Northern States
order, the United States did not affirmatively assert such a defense. The United States argues that it could not have voluntarily or knowingly waived the defense because it “reasonably believed that it was compelled by the
Northern States
mandamus order, under threat of sanctions for contempt, from raising the Unavoidable Delays defense in this case.” Appellant’s Br. 30;
see also id.
at 2 (“[T]he United States was subject to a writ of mandamus from the United States Court of Appeals for the District of Columbia Circuit specifically enjoining it from raising an argument based upon that contractual provision.”).
5
The government misreads the scope and purpose of the
Northern States
order. The order did not foreclose the government from making arguments in the Claims Court. Rather, it was directed toward a situation in which the agency
*1306
itself issued a decision rejecting the premise of the court’s
Indiana Michigan
decision. The court’s concern was that the agency itself would “implement [an] interpretation of the Standard Contract that excuse[d] its failure to perform,” not that the agency might make arguments in the Claims Court.
See Northern States,
Following these decisions by the District of Columbia Circuit, the Claims Court held in
Nebraska Public Power
that the District of Columbia Circuit did not have jurisdiction over disputes under the Standard Contract and hence its mandamus order did “not preclude [the United States] from arguing ... that it did not breach the Standard Contract based on the unavoidable delays clause.”
Neb. Pub. Power Dist. v. United States,
Finally, we note that despite its purported concerns, the government appeared to raise the unavoidable delays clause as a defense in
Nebraska Public Power
and two
pre-Nebraska Public Power
cases.
See Boston Edison Co. v. United States,
Because the government failed to raise the unavoidable delays clause here and because this failure was not compelled by the District of Columbia Circuit’s mandamus in
Northern States,
it has waived the defense. We need not reach the question posed by the
Nebraska Public Power
concurrence as to whether the “unavoidable delays” clause could provide a defense to expectancy damages.
See Nebraska Pub. Power,
III
As noted above, the parties agree that the Claims Court mistakenly included $3,186,000 in damages for bathtub racks at Plant Hatch that would also have been purchased in the non-breach world. Therefore, its decision as to that damage award is vacated.
IV
For the foregoing reasons, we affirm the Claims Court’s determination as to waiver of the unavoidable delays defense, affirm its damage award as to Plant Farley, and vacate and remand its damage award as to Plant Hatch and Plant Vogtle for further proceedings consistent with this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, and REMANDED.
*1307 COSTS
No costs.
Notes
. Plaintiffs Southern Nuclear Operating Co., Georgia Power Co., and Alabama Power Co. are subsidiaries of Southern Co., a holding company. Alabama Power owns Plant Farley. Georgia Power holds a majority interest in Plants Hatch and Vogtle. Southern Nuclear operates all three plants.
. The ACRs only projected pickup allocations for individual plants for the first ten years of the program (though 2007). Under the 1987 ACR, Plant Vogtle’s first pickup allocation was in 2007. The 1991 ACR did not grant Plant Vogtle any pickup allocations for the first ten years. Therefore, under both the 1991 and 1987 rates, Energy would not have picked up any SNF from Plant Vogtle through 2006.
. Presumably, the government argues that some savings would have occurred as a result of any delay in construction.
. The rule with respect to claims for reliance and restitution damages is different. In that context, the defendant has the burden to establish offsets for saved costs.
See, e.g., Am. Capital Corp. v. Fed. Deposit Ins. Corp., 472
F.3d 859, 869 (Fed.Cir.2006) (involving reliance damages);
Caroline Hunt Trust Estate v. United States,
. To the extent the government also argues that it preserved its defense through Christopher Kouts' testimony, this argument must be rejected. The government lawyer at trial acknowledged that what arguments it would make was "still a matter to be decided.” J.A. 860. The United States did not actually raise the defense until its post-trial brief.
.
See also N. States Power Co. v. United States,