United States Court of Appeals
for the Federal Circuit
__________________________
DOMINION RESOURCES, INC.,
DOMINION NUCLEAR CONNECTICUT, INC.,
AND VIRGINIA ELECTRIC AND POWER
COMPANY,
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2009-5031, -5032
__________________________
Appeals from the United States Court of Federal Claims
in case Nos. 04-CV-083 and 04-CV-084, Senior Judge Eric
G. Bruggink.
___________________________
Decided: April 25, 2011
___________________________
BRAD FAGG, Morgan, Lewis & Bockius, LLP, of Wash-
ington DC, argued for the plaintiffs-appellees. With him on
the brief was DAVID M. KERR.
LISA L. DONAHUE, Trial Attorney, Civil Division, United
States Department of Justice, of Washington, DC, argued
for the defendant-appellant. With her on the brief were
DOMINION RESOURCES v. US 2
TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, HAROLD D. LESTER, JR., Assistant
Director, CHRISTOPHER J. CARNEY and SCOTT SLATER, Trial
Attorneys. Of counsel on the brief were JANE K. TAYLOR and
ANDREW P. AVERBACH, Senior Trial Counsel, Office of Gen-
eral Counsel, United States Department of Energy, of
Washington, DC.
__________________________
Before NEWMAN, GAJARSA and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge MOORE.
Circuit Judge GAJARSA concurs-in-part and dissents-in-
part.
MOORE, Circuit Judge.
In this spent nuclear fuel (SNF) case, the United States
appeals two narrow issues underlying the Court of Federal
Claims’ award of damages to Dominion Nuclear Connecti-
cut, Inc. (Dominion) for partial breach of contract. First, the
government appeals the trial court’s holding that the As-
signment of Claims Act does not prohibit the assignment of
existing contract claims to Dominion. Because the Nuclear
Waste Policy Act (NWPA), 42 U.S.C. § 10222, allows such
assignments, we affirm the court’s holding on this issue.
Second, the government appeals the trial court’s denial of
discovery into benefits accruing to Dominion from the
government’s failure to perform. Because the one-time fee
that Dominion will owe when the government begins accept-
ing SNF is not yet due, the government has no basis for its
proposed discovery. We therefore affirm on this second
issue as well.
3 DOMINION RESOURCES v. US
BACKGROUND
The general factual background surrounding the SNF
cases appears in the trial court’s opinions and in earlier
opinions by this court. See Neb. Pub. Power Dist. v. United
States, 590 F.3d 1357, 1359 (Fed. Cir. 2010) (en banc);
Carolina Power & Light Co. v. United States, 573 F.3d 1271,
1273 (Fed. Cir. 2009); Dominion Res., Inc. v. United States,
77 Fed. Cl. 151 (2007); Dominion Res., Inc. v. United States,
84 Fed. Cl. 259 (2008). We recount here only the facts
pertinent to this appeal.
The NWPA authorizes the United States Department of
Energy (DOE) to enter into contracts with utility companies
for the disposal of the utilities’ high-level nuclear waste and
spent nuclear fuel (SNF). 42 U.S.C. § 10222(a). By law, the
Nuclear Regulatory Commission cannot renew the license of
any utility that has not entered into such a contract with
the DOE. 42 U.S.C. § 10222(b)(1)(A). Using notice and
comment rulemaking, the DOE promulgated a Standard
Contract, codified at 10 C.F.R. § 961.11, which contains the
material terms of its agreements with the utilities. 48 Fed.
Reg. 16590-01 (Apr. 18, 1983). Under the Standard Con-
tract, the DOE was to accept delivery of the SNF no later
than January 31, 1998. The DOE partially breached the
Standard Contracts it entered into with the nuclear utilities
because it has yet to accept SNF from the utilities. See
Carolina Power, 573 F.3d at 1273. It is unknown when
DOE will perform under the Standard Contracts, and the
utilities in this case and others seek mitigation damages
incurred in storing the SNF.
DOMINION RESOURCES v. US 4
DISCUSSION
Assignment of Claims
In 1983, Dominion’s predecessor, Northeast Utilities,
executed three Standard Contracts for the disposal of SNF
from its three nuclear power plants at the Millstone Power
Station near New London, Connecticut. When Northeast
Utilities sold Millstone to Dominion in 2001, it also assigned
the three Standard Contracts to Dominion. Dominion, 84
Fed. Cl. at 261. The assignment stated that Northeast
transferred to Dominion, along with title to the SNF, “all
rights of the Sellers . . . under the DOE Standard Contracts
(including all rights to any claims of Sellers related to DOE
defaults thereunder).” J.A. 1613.
In the instant suit, Dominion claimed $52.0 million in
interim storage costs, including $12.1 million incurred by
Northeast prior to Dominion’s acquisition of the Millstone
facility. Dominion, 84 Fed. Cl. at 263, 285. The Court of
Federal Claims determined that approximately $200,000 of
the pre-acquisition damages lacked sufficient evidentiary
support and another $1 million was not recoverable because
Dominion was unable to demonstrate that the costs in-
curred were caused by the government’s breach. Id. at 284-
85. After also disallowing some of the claimed post-
acquisition damages, the trial court awarded Dominion
approximately $42.7 million, of which $10.9 million was
incurred prior to Dominion’s acquisition of Millstone. Id. at
263; Appellee’s Br. 2.
At issue here is the pre-acquisition portion of the dam-
ages awarded to Dominion. The government does not
dispute Dominion’s entitlement to the interim storage costs
for the SNF which it incurred after it acquired Millstone.
The government also does not dispute its responsibility for
5 DOMINION RESOURCES v. US
interim storage costs for the SNF following the breach and
up until Dominion’s acquisition of Millstone (the $10.9
million). The government’s argument on appeal, however, is
that Dominion is not entitled to sue the government for the
$10.9 million incurred by Northeast Utilities for storing the
SNF. Moreover, the government does not dispute that
pursuant to the contract in which Northeast Utilities sold
Millstone to Dominion, both parties clearly intended for the
sale to include the transfer of the claim against the govern-
ment for the pre-acquisition interim storage fees. Rather
the government argues that Northeast Utilities was not
permitted to transfer its claim against the government for
interim storage fees – that such a transfer is barred by the
Assignment of Claims Act, Pub. L. No. 97-258, § 1, 96 Stat.
976 (codified at 31 U.S.C. § 3727) (Claims Act).
The Claims Act generally prohibits the assignment of a
claim against the government until “after [the] claim is
allowed, the amount of the claim is decided, and a warrant
for payment of the claim has been issued.” 31 U.S.C.
§ 3727. A similar statute, 41 U.S.C. § 15 (Contracts Act),
generally prohibits the assignment of contracts. The gov-
ernment may waive these restrictions. Tuftco Corp. v.
United States, 614 F.2d 740, 745 (Ct. Cl. 1980).
At trial, the government argued that the NWPA waives
the provisions of the Contracts Act but not those of the
Claims Act, thus preventing the transfer of any claim for
pre-assignment damages from Northeast Utilities to Domin-
ion. Dominion, 84 Fed. Cl. at 286. The government also
argued that pursuant to Ginsberg v. Austin, 968 F.2d 1198,
1199 (Fed. Cir. 1992), Congress must, but did not, expressly
waive the Claims Act as to existing breach of contract
claims. 84 Fed. Cl. at 286. The trial court disagreed, ruling
that the NWPA provides a statutory waiver to the Claims
Act and that the agreement assigning the Standard Con-
DOMINION RESOURCES v. US 6
tracts to Dominion specifically included the right to assert
an existing breach of contract claim. Id. at 286.
We review the CFC’s statutory interpretation and legal
conclusions de novo and its factual findings for clear error.
Heisig v. United States, 719 F.2d 1153, 1158 (Fed. Cir.
1983). We begin our interpretation with the statutory
language. Consumer Prod. Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980). The relevant portion of the
NWPA states: “The rights and duties of a party to a contract
entered into under this section may be assignable with
transfer of title to the spent nuclear fuel or high-level radio-
active waste involved.” 42 U.S.C. § 10222(b)(3). After notice
and comment rulemaking, the DOE adopted similar lan-
guage in the Standard Contract: “The rights and duties of
the Purchaser may be assignable with transfer of title to the
SNF” with 90 days notice to the government. 10 C.F.R.
§ 961.11, Art. XIV.
As it did at trial, the government argues on appeal that
Congress waived the Contracts Act but not the Claims Act
by stating in the NWPA that “[t]he rights and duties of a
party to a contract” are assignable. Relying on Ginsberg,
the government argues that the Claims Act requires a
specific, express waiver for existing claims, and asserts that
the NWPA does not provide one. The government also
asserts that Congress’ use of the word “contract” but not
“claim” in the NWPA draws a distinction between the
assignment of an existing contract and the assignment of an
existing claim for damages, and because the Claims Act and
the Contracts Act are separate statutes, assignments of
contracts and assignments of claims must be treated differ-
ently. Citing Tuftco, 614 F.2d at 744, the government
argues that “the conceptual difference” between the statutes
is that the Claims Act “pertains to claims for work already
done” and the Contract Act “is more concerned with continu-
7 DOMINION RESOURCES v. US
ing obligations.” Thus, according to the government, the
NWPA allows the assignment of “continuing rights and
duties” under the contract, but not “assignment of claims
that accrued prior to contract assignment.”
The issue before us is whether the language which per-
mits assignment of “the rights and duties of a party to a
contract” includes the right to assign existing damages
stemming from a breach of contract claim. Does this lan-
guage allow the transfer of the damages claim for breach
along with the transfer of the contract? We conclude that it
does. The statutory language is broad and allows for trans-
fer of not just the contract, but transfer of “the rights and
duties of a party to a contract.” One of the rights of a party
to a contract is the right to bring a claim for damages result-
ing from breach. The government’s reading of the NWPA
modifies its plain language in one of two ways: it either
reads into the NWPA the word continuing (i.e., only continu-
ing rights and duties may be assigned); or it reads out “the
rights and duties of a party” (i.e., only a contract may be
assigned). The “rights and duties of a party to a contract”
encompass not just the party’s continuing rights and duties
under the contract, but also the party’s existing right to
enforce the contract for an ongoing breach and to collect
damages that have been incurred. See, e.g., Restatement
(Second) of Contracts § 346 (“The injured party has a right
to damages for any breach by a party against whom the
contract is enforceable. . . .”). Although the Claims Act and
the Contracts Act are separate statutes, the Tuftco court
recognized that the “concerns of the two statutes and the
legal concepts involved in their applicability are the same.”
Tuftco, 614 F.2d at 744 n.4. The plain language of the
NWPA provision states that all rights of a party to a con-
tract are assignable. In this case, it is undisputed that in its
transfer of Millstone, Northeast Utilities intended to assign
its claim for interim storage fees. We see no reason to read
DOMINION RESOURCES v. US 8
a limitation into the text of the NWPA regarding claims for
damages for an existing, ongoing partial breach.
While it is certainly true that the bare assignment of a
contract does not transfer all accrued claims, here, Con-
gress’ intent is manifest in the plain language of the NWPA:
a party to the Standard Contract may assign its rights.
This includes the party’s right to collect damages incurred
due to an existing, ongoing breach. Ginsberg, a case decided
under state property laws pertaining to real property is not
to the contrary. Ginsburg recites no requirement that the
transfer of an existing breach of contract cause of action
requires a separate, specific, express designation of the
claim in the assigning document. On the contrary, Ginsberg
states that a contract assignment may “specifically or impli-
edly designate” accrued causes of action. 968 F.2d at 1201.
We conclude Congress permitted just such a designation in
the NWPA.
The government further argues that our conclusion sub-
verts the purpose of the Claims Act, which “allow[s] the
government to deal solely with the original contractor,”
protects the government’s ability to defend itself by ensur-
ing availability of evidence, and reduces the possibility of
multiple payments of claims. As an initial matter, these
policy arguments do not trump the plain language of the
statute. Moreover, these policy concerns are not implicated
here. This is not a case where there is any confusion over
whether the parties intended to transfer the right to sue for
pre-acquisition interim storage fees – it is undisputed that
they did. A party to a standard contract cannot transfer its
rights and duties to another party without also transferring
title to the SNF. Hence, the party who is suing for interim
9 DOMINION RESOURCES v. US
storage fees is suing for all interim storage fees. 1 Moreover,
the plaintiff has the burden to prove damages, and indeed,
the trial court excluded a portion of Dominion’s claimed
damages as unsupported. 84 Fed. Cl. at 284. Finally, the
government does not assert that it was unable to access any
needed information through discovery. The government
does not appear to have suffered any harm from the consoli-
dation of the interim storage fee claim with a single party.
Northeast Utilities and Dominion complied with the re-
quirements of the Standard Contracts and the NWPA when
they executed the purchase agreement, which assigned to
Dominion along with title to the SNF, “all rights . . . under
the DOE Standard Contracts (including all rights to any
claims of [Northeast Utilities] related to DOE defaults
thereunder).” J.A. 1613. Accordingly, Dominion has the
right to collect pre-assignment damages for the govern-
ment’s ongoing partial breach of Dominion’s Standard
Contracts.
1 The government asks us to hold that if “the ‘rights
and duties of a party to a claim’ encompass the right to
pursue damages claims, the contract holder should be
required to assign all claims.” Appellant Br. 22 (emphasis
in original). We see no such requirement in the NWPA or
the Standard Contract. While the language permits as-
signment of the claims, the language does not require such
assignment. We appreciate that it would certainly be easier
for the government to litigate against a single party for all
interim storage fees, as it is able to do in this case. Whether
to transfer a right to existing claims, however, is up to the
parties to contract – in this case, the government is realiz-
ing exactly this efficiency given that it is undisputed that
Dominion has been transferred this right by Northeast
Utilities.
DOMINION RESOURCES v. US 10
One-Time Fee
Seeking to offset damages, the government also appeals
the trial court’s dismissal of certain counterclaims and
defenses. Specifically, the government asserts that because
Dominion’s one-time fee is not yet payable because of the
government’s breach, Dominion may have profited by hav-
ing use of that money in the meantime. Thus, the govern-
ment reasons, it is entitled to discovery into any economic
benefit obtained by Dominion by deferring payment of the
one-time fee until the government finally performs.
Within two years of execution of a Standard Contract, a
contracting utility is required to select one of three options
for the payment of a one-time fee for the disposal of SNF
generated before April 7, 1983:
(a) Option 1 -- The Purchaser’s financial obligation
for said fuel shall be prorated evenly over forty (40)
quarters . . . .
(b) Option 2 -- The Purchaser’s financial obligation
shall be paid in the form of a single payment any-
time prior to the first delivery . . . and shall consist
of the fee plus interest on the outstanding fee bal-
ance. Interest is to be calculated from April 7, 1983,
to the date of the payment based upon the 13-week
Treasury bill rate . . . .
(c) Option 3 -- The Purchaser’s financial obligation
shall be paid prior to June 30, 1985, or prior to two
(2) years after contract execution, whichever comes
later . . . .
Standard Contract, art. VIII.B.2. No one-time fee is payable
for Millstone Unit Three because it did not generate any
11 DOMINION RESOURCES v. US
electricity prior to April 7, 1983. For Millstone Units One
and Two, Northeast Utilities selected Option 2, and agreed
to pay a total of $82.1 million prior to the DOE’s acceptance
of its first delivery of SNF. The parties do not dispute that
this one-time fee is not yet due because of the government’s
breach.
According to the government, Dominion (or its predeces-
sor) would have paid the one-time fee by 1998 had the
government timely performed under the Standard Contract.
The government asserts that it should be allowed to inves-
tigate if Dominion has received any economic benefit from
having the use of that money in the meantime by investing,
financing other projects, or avoiding the need to obtain
loans. The Court of Federal Claims disagreed, and noted
that the “one-time fee is simply not yet due under the Stan-
dard Contract, and the parties have contracted for how
much interest accrues in the interim.” 77 Fed. Cl. at 157.
The court concluded that “[u]ntil the one-time fee becomes
due, the government does not have a claim for early pay-
ment.” Id. Nonetheless, the government asserts on appeal
that Dominion should not be put into a better position or
receive a windfall because of the government’s breach.
The government previously argued a variant of this the-
ory before us in another SNF case. See Yankee Atomic Elec.
Co. v. United States, 536 F.3d 1268, 1280 (Fed. Cir. 2008).
In that case, we found that the utility had no obligation to
pay the one-time fee that was not yet due according to the
terms of Option 2. Id. Our holding in Yankee Atomic fore-
closes the government’s arguments in this case. Because
the injured utilities are not relieved by the government’s
partial breach from their obligation to pay the fee with
interest when it comes due, the government is not entitled
to an offset for any damages awarded. Id. Indeed, in our
analysis Yankee Atomic, we quoted the case on appeal before
DOMINION RESOURCES v. US 12
us now. We stated that the Court of Federal Claims “cor-
rectly note[d]” that
[The utilities] still have the SNF, the government
still has the obligation to pick it up, and plaintiffs
still have to pay the one-time fee when it becomes
due. The only thing that is different from the con-
tract scenario is that [the utilities’] claim to have
been forced to absorb unnecessary interim storage
costs. If the government reimburses such costs, it
hardly puts plaintiffs in a better position.
Yankee Atomic Elec. Co. v. United States, 536 F.3d 1268,
1281 (Fed. Cir. 2008) (quoting 77 Fed. Cl. at 156).
We see no merit whatsoever to the government’s argu-
ment that Dominion may have benefited from the govern-
ment’s breach. Moreover the parties agreed ex ante,
expressly in the contract that the utility would pay the one-
time fee with interest accruing from April of 1983 at the
thirteen-week Treasury bill rate. 2 Dominion cannot ask for
increased damages should its investment of the one-time fee
return less than the thirteen-week rate, and the government
2 We note that, in draft form, Option 2 of the Stan-
dard Contract did not include payment of interest for defer-
ral of the one-time fee. See Standard Contract for Disposal
of Spent Nuclear Fuel and/or High Level Radioactive Waste,
48 Fed. Reg. 5458, 5464 (Feb. 4, 1983) (draft rule). But in
response to public comments, the final version of the Stan-
dard Contract “incorporated provisions which allow a Pur-
chaser to finance its contractual fee obligation until paid,
under terms which recognize the time value of money.”
Standard Contract for Disposal of Spent Nuclear Fuel
and/or High-Level Radioactive Waste, 48 Fed. Reg. 16590,
16593 (Apr. 18, 1983) (commentary on final rule). Because
the parties have contractually assigned a specific value to
the cost of capital involved, the United States cannot seek to
recover excess gains from Dominion’s investments
13 DOMINION RESOURCES v. US
cannot ask for a reduction in damages should Dominion’s
investments return more. For either party, such gains or
losses are too remote, too far removed from the breach, and
the result of intervening investment risk. See LaSalle
Talman Bank v. United States, 317 F.3d 1363, 1373 (Fed.
Cir. 2003); Hughes Commc’ns Galaxy, Inc. v. United States,
271 F.3d 1060, 1072 (Fed. Cir. 2001).
For the forgoing reasons, we affirm the Court of Federal
Claims’ award of damages to Dominion, including its dis-
missal of the government’s defenses and counterclaims
regarding the one-time fee.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
__________________________
DOMINION RESOURCES, INC.,
DOMINION NUCLEAR CONNECTICUT, INC.,
AND VIRGINIA ELECTRIC AND POWER
COMPANY
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2009-5031, -5032
__________________________
Appeal from the United States Court of Federal
Claims in case nos. 04-CV-083 and 04-CV-084, Senior
Judge Eric G. Bruggink.
__________________________
GAJARSA, Circuit Judge, concurring-in-part and dissent-
ing-in-part.
Two statutory provisions, 41 U.S.C. § 15 (the “Con-
tracts Act”) and 31 U.S.C. § 3727 (the “Claims Act”),
generally restrict assignments of contracts and claims
against the Government. Tuftco Corp. v. United States,
222 Ct. Cl. 277, 614 F.2d 740, 744 (1980). I agree with my
colleagues that the Nuclear Waste Policy Act of 1982
(“NWPA”) and the Standard Contract waive the restric-
tions of the Contracts Act. But because I conclude that
DOMINION RESOURCES v. US 2
the restrictions of the Claims Act were not waived, I
respectfully dissent from Part I of the majority opinion. 1
I.
Congress first restricted the assignment of claims
against the United States in 1846. See An Act in Relation
to the Payment of Claims, ch. 66, 9 Stat. 41 (1846).
Initially of narrow scope, the restriction was subsequently
extended to “all claims against the United States,
whether allowed by special acts of Congress, or arising
under general laws or treaties, or in any other manner
whatever” following a series of fraudulent claims associ-
ated with the Mexican War. An Act to Prevent Frauds
upon the Treasury of the United States, ch. 81, § 7, 10
Stat. 170, 171 (1853); see also H.R. Rep. 32-1 (1852). In
doing so, Congress decreed
That all transfers and assignments hereafter
made of any claim upon the United States, or any
part or share thereof, or interest therein . . . shall
be absolutely null and void, unless the same shall
be freely made and executed . . . after the allow-
ance of such claim, the ascertainment of the
amount due, and the issuing of a warrant for
the payment thereof.
10 Stat. at 170 (emphasis added). In its current form, the
Claims Act provides, in relevant part, that
1 The majority also holds that the United States
cannot seek an offset for any benefit to Dominion from the
delay in paying the one-time fee. Majority Op. at 10-13.
Because I would find that Northeast Utilities’ assignment
of unascertained claims is barred by the Claims Act, I join
Part II of the Majority Opinion only to the extent the
claims in question accrued after the contracts were as-
signed to Dominion. I concur fully, however, in the major-
ity’s reasoning on the issue of offset.
3 DOMINION RESOURCES v. US
An assignment may be made only after a claim
is allowed, the amount of the claim is de-
cided, and a warrant for payment of the
claim has been issued. The assignment shall
specify the warrant . . . and must be attested to by
2 witnesses. The person making the assignment
shall acknowledge it before an official . . . and the
official shall certify the assignment.
31 U.S.C. § 3727(b) (emphasis added). Thus, while the
specifics of this provision have been amended over the
years, the requirement that an assignment be made only
after allowance and ascertainment remains. See Fire-
man’s Fund Ins. Co. v. England, 313 F.3d 1344, 1349
(Fed. Cir. 2002).
Despite the facially strict language of the Claims Act,
the Supreme Court created an exception for transfers by
operation of law. See United States v. Aetna Cas. & Sur.
Co., 338 U.S. 366, 375-76 (1949). This exception grew out
of the Court’s decision in Erwin v. United States, which
held that “[t]he passing of claims to heirs, devisees, or
assignees in bankruptcy is not within the evil at which
the statute aimed,” and therefore a claim against the
United States could be transferred to the trustee of a
bankrupt’s estate. 97 U.S. 392, 397 (1878).
In contrast to transfers by operation of law, the Su-
preme Court has generally held that the Claims Act
precludes voluntary assignments. E.g., United States v.
Dow, 357 U.S. 17, 20 (1958); United States v. Shannon,
342 U.S. 288, 292 (1952); Spofford v. Kirk, 97 U.S. 484,
489 (1878); see also Aetna Cas., 338 U.S at 375 (“[T]he
Court has always stated the flat exception of all transfers
by operation of law, as distinguished from voluntary
transfers.”). Indeed, the Court has recognized as excep-
tions to the broad sweep of the statute only two types of
DOMINION RESOURCES v. US 4
voluntary assignments: “transfers by will” and “general
assignments for the benefit of creditors.” Shannon, 342
U.S. at 292.
II.
Here, the claim was voluntarily assigned, but it was
neither ascertained nor allowed at the time of assign-
ment. The assignment was therefore contrary to the
requirements of the Claims Act. It does not fall within
either of the recognized exceptions, and it clearly impli-
cates the mischief that the Claims Act was intended to
avoid: namely, forcing the United States to deal with
multiple parties, including strangers to the original
transaction, and the attendant litigation surrounding the
assignment itself. 2, 3 See, e.g., Shannon, 342 U.S. at 291-
92 (one purpose was “to prevent possible multiple pay-
ment of claims, to make unnecessary the investigation of
alleged assignments, and to enable the Government to
deal only with the original claimant”). In my judgment,
the assignment to Dominion was thus precluded by the
Claims Act.
2 The majority insists that “these policy arguments
do not trump the plain language of the statute.” Majority
Op. at 8. In doing so, the majority misses the point.
Here, the language in the NWPA is not unambiguous. I
believe that, where such ambiguity exists, the policies
promoted by the Claims Act are relevant to our determi-
nation of whether the “plain language” in question is
sufficient to support a waiver.
3 The United States identified specific deficiencies
in its ability to discover information from Northeast
Utilities that were directly relevant to the claim at issue.
Appellant Br. at 20-21. It is not enough to say that the
United States could have resolved these issues by joining
Northeast Utilities as an involuntary plaintiff; that
argument was soundly rejected in Shannon, 342 U.S. at
284.
5 DOMINION RESOURCES v. US
Nevertheless, because the Claims Act is for the pro-
tection of the United States, the United States may waive
it. Delmarva Power & Light Co. v. United States, 542
F.3d 889, 893-94 (Fed. Cir. 2008). In this case, the major-
ity finds waiver via the language of 42 U.S.C. § 10222 and
the Standard Contract. Majority Op. at 7-8.
The NWPA provides:
The rights and duties of a party to a contract en-
tered into under this section may be assignable
with transfer of title to the spent nuclear fuel or
high-level radioactive waste involved.
42 U.S.C. § 10222(b)(3) (emphasis added). Similarly, the
Standard Contract provides:
The rights and duties of the Purchaser may be as-
signable with transfer of title to the SNF and/or
HLW involved; provided, however, that notice of
any such transfer shall be made to DOE within
ninety (90) days of transfer.
10 C.F.R. § 961.11 at Art. XIV (emphasis added). Clearly,
this language supports a conclusion that something may
be assigned. In the majority’s opinion, the phrase “rights
and duties” supports an expansive waiver of both the
Contracts Act and the Claims Act. In support of its
holding, the majority cites only to a single sentence in the
Restatement (Second) of Contracts: “[t]he injured party
has a right to damages for any breach by a party against
whom the contract is enforceable . . . .” Majority Op. at 7.
While I agree that claims resulting from a breach of
contract can be conceptualized as a “right” under the
contract, I am unwilling to interpret broadly that provi-
sion of the NWPA given Congress’s history of explicitly
waiving the Claims Act when it desires to do so. For
example, Congress has said:
DOMINION RESOURCES v. US 6
Hereafter the provisions of section thirty-four
hundred and seventy-seven of the Revised Stat-
utes shall not apply to payments for rent of post-
office quarters made by postmasters to duly au-
thorized agents of the lessors.
Act of May 27, 1908, ch. 206, 35 Stat. 406, 411 (referenc-
ing prior codification). And:
Notwithstanding the provision of section 3727 of
Title 31, the Secretary is authorized to recognize
validly executed assignments made by Regional
Corporations of their rights to receive payments
from the Alaska Native Fund.
43 U.S.C. § 1628(a); see also 25 U.S.C. § 1725(d)(2); 22
U.S.C. § 4060(a)(2). Indeed, the Claims Act itself excepts
certain types of assignments. 31 U.S.C. § 3727(c). Par-
ticularly in light of this history, I believe the majority fails
to give even short shrift to the general rule that statutes
should be interpreted so as to avoid one statute repealing
or overriding another. See Sec. Indus. Ass’n v. Bd. of
Governors of Fed. Res. Sys., 468 U.S. 137, 176 (1984).
My reticence is reinforced by the strong disfavor
shown voluntary assignments of claims. E.g., Dow, 357
U.S. at 20; Shannon, 342 U.S. at 292-93. And the Re-
statement itself—the only source cited by the majority in
support—appears to draw a distinction between rights
under a contract and a claim for breach, with the latter
being based on the former, but one step removed. Re-
statement (Second) of Contracts § 236 (“A claim for dam-
ages for partial breach is one for damages based on only
part of the injured party’s remaining rights . . . .”). I
therefore conclude that the use of the phrase “rights and
duties” in the NWPA and Standard Contract refers only
to the immediate rights and duties associated with the
contract itself, not an unascertained monetary claim for
7 DOMINION RESOURCES v. US
breach that is one-step removed from the statutory “rights
and duties” provision. I would thus find waiver of the
Contracts Act, 41 U.S.C. § 15, but not the Claims Act, 31
U.S.C. § 3727.