System Fuels, Inc. v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
__________________________

SYSTEM FUELS, INC. AND ENTERGY ARKANSAS,
INC.,
Plaintiffs-Cross Appellants,
v.
UNITED STATES,
Defendant-Appellant.
__________________________

2008-5025, -5035
__________________________

Appeal from the United States Court of Federal
Claims in Case No. 03-CV-2623, Judge Charles F. Lettow.
_________________________

Decided: January 19, 2012
_________________________

CATHERINE E. STETSON, Hogan Lovells US, LLP, of
Washington, DC, argued for plaintiffs-cross appellants.
With her on the brief was DOMINIC F. PERELLA. Of coun-
sel on the brief was LAYTON JAGER SMITH, JR., Wise,
Carter, Child & Caraway, P.A., of Jackson, Mississippi.
Of counsel was PAUL ANTHONY WERNER, III, Hogan Lov-
ells US, LLP, of Washington, DC.
SYSTEM FUELS v. US 2

HAROLD D. LESTER, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for the
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 R.
DAMELIN, Trial Attorney. Of counsel on the brief was
JANE K. TAYLOR, Office of General Counsel, United States
Department of Energy, of Washington, DC.
__________________________

Before RADER, Chief Judge, NEWMAN and LINN, Circuit
Judges.
Opinion for the court filed by Chief Judge RADER. Opin-
ion concurring-in-part, dissenting-in-part filed by Circuit
Judge NEWMAN.
RADER, Chief Judge.
After trial, the United States Court of Federal Claims
awarded Plaintiffs-Cross Appellants System Fuels, Inc.
and Entergy Arkansas, Inc. (collectively “SFI Arkansas”
or “Plaintiffs”) damages arising from the Department of
Energy’s (“DOE”) partial breach of a contract. System
Fuels, Inc. v. United States, 79 Fed. Cl. 37, 40 (2007).
Because the trial court properly declined to offset the
damages award by the amount of Plaintiffs’ one-time fee,
this court affirms. On the other hand, this court reverses
the trial court’s denial of Plaintiffs’ capital suspense
loader costs. This court also remands the action for analy-
sis in view of this court’s decisions in Pacific Gas & Elec-
tric Co. v. United States, 536 F.3d 1282 (Fed. Cir. 2008)
and Yankee Atomic Electric Co. v. United States, 536 F.3d
1268 (Fed. Cir. 2008).
3 SYSTEM FUELS v. US

I.
In 1983, the parties entered into a Standard Contract
for Disposal of Spent Nuclear Fuel and/or High-Level
Radioactive Waste (“Standard Contract”), under the
Nuclear Waste Policy Act of 1982, Pub. L. No. 97-425. 96
Stat. 2201 (codified at 42 U.S.C. §§ 10101-10270 (2006)).
79 Fed. Cl. at 42. This contract required DOE to begin
collecting spent nuclear fuel (“SNF”) from Plaintiffs no
later than January 31, 1998 in exchange for their pay-
ment of two types of fees into the Nuclear Waste Fund.
Id. at 41-42. The first fee is a one-time fee based on
energy generated and sold before April 7, 1983. Id. at 41.
The Standard Contract offered three options for payment
of the one-time fee: (1) payment in full by June 30, 1985
without interest, (2) deferred payments over 40 quarters
with interest accruing on the unpaid principle, or (3)
payment in full plus interest prior to the first delivery of
SNF to DOE. Interest was set at the 13-week Treasury
bill rates. Id. at 42. SFI Arkansas contracted for the
third option, and as of, June 30, 2006, the expected one-
time fee totaled approximately $165 million. Id. at 43.
The contract did not address some specifics, but the
parties agreed that in a non-breach world, DOE would
have begun collecting SNF from SFI Arkansas in 2001,
and the one-time fee would have been due before that
collection. SFI Arkansas remains liable to pay the one-
time fee before DOE begins collection. Id. at 54-55, 72.
The second type of fee was a continuing fee based on
the amount of energy produced after April 7, 1983. Id. at
41. SFI Arkansas has paid this continuing fee since the
Standard Contract was executed for a total of $269 mil-
lion (as of December 2006) and approximately $13 to $15
million per year thereafter. Id. at 43.
SYSTEM FUELS v. US 4

The power facility in this case is a two-unit Arkansas
Nuclear One (“ANO”) power plant in Russellville, Arkan-
sas. Id. at 40. Unit One began operation in 1974 and has
permission to operate through 2034. Unit Two began
operation in 1978 with permission to operate through
2038. Id. at 48. The record shows that SFI Arkansas
would have provided dry fuel storage in the non-breach
world, but the parties dispute the amount of additional
storage required to account for the Government’s breach.
Id. at 55.
In 1996, Plaintiffs constructed dry fuel storage — in-
dependent spent fuel storage installation (“ISFSI”) — and
began loading VSC-24 “dry casks” into the storage facility.
Id. at 49. When the VSC-24 dry casks reached capacity
with no prospect the DOE would perform on the contract,
SFI Arkansas determined that it would need additional
storage. Id. SFI Arkansas switched to Holtec dry casks
and purchased 22 of these casks because the VCS-24 dry
casks were no longer being produced. Id. at 49-50. The
transition to the Holtec dry casks required SFI Arkansas
to modify its facilities, which included the purchase of a
new crane, construction of a new ISFSI pad, and modifica-
tion to the SNF pool-to-cask loading system. Id. at 54, 60-
61.
The trial court relied upon this court’s decision in
Maine Yankee Atomic Power Co. v. United States, 225
F.3d 1336, 1341 (Fed. Cir. 2000), and granted SFI Arkan-
sas’ motion for summary judgment of partial breach. 79
Fed. Cl. at 74. SFI Arkansas used five capital work
orders to track the costs associated with their mitigation
efforts, classified as follows: (i) expansion of ANO’s ISFSI
and necessary equipment ($6,139,210), (ii) ANO site
modifications ($4,229,607), (iii) dry fuel storage procure-
ment ($33,659,710), (iv) dry fuel storage cask loading
($4,011,127), and (v) ANO’s spent fuel pool modifications
5 SYSTEM FUELS v. US

($4,152,778). Id. at 54. Two additional work orders were
for team support of Nuclear Fuel Services totaling
$1,420,681 and property taxes amounting to $160,652.
Id. An eighth category of costs claimed by SFI Arkansas
was for financing costs and mitigating degradation of the
Boraflex. Id. In total, SFI Arkansas sought over $70
million in damages based on their calculation of when the
Government would have collected SNF from ANO. Id. at
56-58.
The parties agreed that DOE would have begun col-
lecting SNF from ANO in 2001 but differed in the accep-
tance rate. Id. at 55. After a seventeen-day trial, site
visit, and post-trial briefing, the trial court adopted the
acceptance rate offered by SFI Arkansas and awarded
damages in the amount of $48,651,728, but rejected their
claims for project financing costs, administrative and
engineering overhead costs, as well as a portion of the
salary and non-salary labor costs. Id. at 54, 64-68. The
trial court denied the Government’s claim that the award
of damages should be offset by the “economic benefit”
obtained by deferred payment of the one-time fee. Id. at
74. The Government appeals the trial court’s award of
damages to Plaintiffs for their mitigation efforts. Plain-
tiffs cross-appeal the trial court’s denial of cost-of-capital
and capital suspense loader damages.
II.
This court reviews factual findings of the United
States Court of Federal Claims for clear error. Ind. Mich.
Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. Cir.
2005). Factual findings include “the general type of
damages to be awarded . . . , their appropriateness . . . ,
and rates used to calculate them.” Home Sav. of Am. v.
United States, 399 F.3d 1341, 1347 (Fed. Cir. 2005). The
trial court is granted wide discretion in determining an
SYSTEM FUELS v. US 6

appropriate quantum of damages. Hi-Shear Tech. Corp.
v. United States, 356 F.3d 1372, 1382 (Fed. Cir. 2004). “A
finding may be held clearly erroneous when . . . the appel-
late court is left with a definite and firm conviction that a
mistake has been committed.” 422 F.3d at 1373 (quoting
In re Mark Indus., 751 F.2d 1219, 1222-23 (Fed. Cir.
1984)). This court reviews the trial court’s legal conclu-
sions without deference. Yankee Atomic, 536 F.3d at
1272.
III.
The trial court erred in its causation analysis. As the
parties now acknowledge, this court’s decisions in Pacific
Gas and Yankee Atomic require the trial court to perform
a substantially different causation analysis. In Pacific
Gas, this court determined that the process recited in the
1987 Annual Capacity Report was the contractual accep-
tance rate because it “provide[d] the best available pre-
breach snapshot of both parties’ intentions for an accep-
tance rate” and “contemplated full and timely perform-
ance” by the Government. 536 F.3d at 1292. Under
Yankee Atomic, SFI Arkansas has the “burden to prove
the contractual acceptance rate and apply the rate before
suggesting that the Government’s breach was a substan-
tial factor in causing [their] claimed expenses.” 536 F.3d
at 1273. Therefore, on remand, the trial court must hold
SFI Arkansas to this burden. This court will not provide
further instructions to the trial court or limit its review
because the trial court is vested with the responsibility to
determine facts and award the damages supported by
those facts. Therefore, this court places no limitations at
this point on its remand order.
IV.
The trial court rejected the Government’s claim for an
offset because SFI Arkansas received an alleged economic
7 SYSTEM FUELS v. US

benefit from the deferral of its payment of the one-time
fee. 79 Fed. Cl. at 74. This court has previously ad-
dressed the question of whether utilities, such as SFI
Arkansas, must pay the one-time fee for the disposal of
SNF despite the Government’s failure to perform under
the Standard Contract. See Yankee Atomic, 536 F.3d at
1279. In Yankee Atomic, this court determined that
“[b]ecause this case presents a partial breach of contract,
the [utility’s] ongoing contractual obligation has not yet
matured under the terms of the contract itself.” Id. at
1280. Further, the one-time fee cannot be used as a
“condition precedent or offset for an award of damages.”
Id.
As this court previously stated, “[j]ust as the utilities
cannot now collect damages not yet incurred under the
ongoing contract, the Government cannot prematurely
claim a payment that has not become due.” Id. at 1281.
This includes any alleged “economic benefit” from deferral
of payment of the one-time fee that the Government now
attempts to claim as an offset and divorce from the one-
time fee itself. In Dominion Resources, Inc. v. United
States, 641 F.3d 1359, 1360 (Fed. Cir. 2011), this court
addressed whether the Government could receive discov-
ery into alleged benefits accrued by a utility due to DOE’s
failure to perform. This court stated that “[o]ur holding in
Yankee Atomic foreclose[d] the government’s arguments
in this case.” 641 F.3d at 1365. As such, the Govern-
ment’s attempt here to distinguish its current arguments
based on alleged benefits accruing to SFI Arkansas from
those previously presented during Yankee Atomic are
neither persuasive nor successful. See Dominion Re-
sources, 641 F.3d at 1365 (stating that this court “see[s]
no merit whatsoever to the government’s argument that
[the utility] may have benefited from the government’s
breach”). For these reasons, this court affirms the trial
SYSTEM FUELS v. US 8

court’s denial of the Government’s claim for an offset
based on the one-time fee.
V.
On cross-appeal, SFI Arkansas presents the issue of
whether the trial court erred in its denial of cost of capital
in its award of damages. Before the trial court, SFI
Arkansas claimed the cost of financing the expansion of
the dry fuel storage project and mitigation of degradation
of the Boraflex. 79 Fed. Cl. at 69. The trial court denied
SFI Arkansas’ claim for cost-of-capital damages because it
determined that Plaintiffs did not “establish[ ] that [their]
claimed financing costs [were] directly related to required
borrowing through specific debt instruments . . .” Id. at
70. The trial court stated that Wickham Contracting Co.
v. Fischer, 12 F.3d 1574 (Fed. Cir. 1994), “[did] not apply
in this instance because, among other things, [the utilities
had] not shown that [they] borrowed money specifically to
pay for the cost of the dry storage project.” 79 Fed. Cl. at
70.
SFI Arkansas’ claim seeks interest against the Gov-
ernment, which is not recoverable under 28 U.S.C.
§ 2516(a). This court stated in England v. Contel Ad-
vanced Systems, Inc., that “[t]he no-interest rule is an
aspect of the basic rule of sovereign immunity.” 384 F.3d
1372, 1379 (Fed. Cir. 2004) (citing Library of Cong. v.
Shaw, 478 U.S. 310, 315 (1986); Smith v. Principi, 281
F.3d 1384 (Fed. Cir. 2002)). The no-interest rule requires
denial of claims for interest and “interest costs incurred
on money borrowed as a result of the government’s breach
or delay in payment.” 384 F.3d at 1379. This court’s
decision in Energy Northwest v. United States addressed
the no-interest rule and reaffirmed England, which
controls this case. 641 F.3d 1300 (Fed. Cir. 2011). As
such, SFI Arkansas’ claim for cost of capital is barred, and
9 SYSTEM FUELS v. US

this court affirms the trial court’s denial of this damages
claim.
VI.
SFI Arkansas also cross-appeals the trial court’s de-
nial of their capital suspense loader damages as “exces-
sive.” The capital suspense loader accounted for overhead
costs that were not associated with a particular project
because the amount of time expended was in increments
of 30 minutes or less. 79 Fed. Cl. at 64. The trial court
stated that as a “general matter” overhead costs were “not
troublesome,” but found this claim to be “problematic”
because it was “necessarily imprecise, to the point that
this loader is akin to a charge for general management
supervision.” Id. In support of this, the trial court stated
the following:
In procurement law, field and home-office over-
head can be allowable costs. Field overhead rates
between eight and ten percent have been deemed
allowable, and home-office overhead rates of
slightly lesser percentages have been included in
damage awards. The amount claimed by [SFI Ar-
kansas] in this instance represents 6.9 percent of
the total capital costs claimed. However, judged
by these somewhat comparable overhead allow-
ances for supervision, [SFI Arkansas’] claimed
amount is excessive because all supervising time
in increments of one-half hours or more has al-
ready been included in specific work orders. The
capital suspense loader will be removed from [SFI
Arkansas’] damages.
Id. at 64-65 (internal citations omitted).
This court has affirmed a trial court’s award of over-
head costs to a utility whose “internal accounting system
SYSTEM FUELS v. US 10

use[d] specific codes to allocate a portion of [the overhead
expenses] to particular projects . . .” Carolina Power &
Light Co. v. United States, 573 F.3d 1271, 1276-77 (Fed.
Cir. 2009). In Indiana Michigan, this court explained
that “[d]amages for a breach of contract are recoverable
where: (1) the damages were reasonably foreseeable by
the breaching party at the time of contracting; (2) the
breach is a substantial causal factor in the damages; and
(3) the damages are shown with reasonable certainty.”
422 F.3d at 1373 (citing Energy Capital Corp. v. United
States, 302 F.3d 1314, 1320 (Fed. Cir. 2002)). Further,
“the amount of damages need not be ‘ascertainable with
absolute exactness or mathematical precision,’ [but]
recovery for speculative damages is precluded.” Ind.
Mich., 422 F.3d at 1373. This court has also determined
that “mitigation activities generally were supported by
certain overhead services that [the utility] provided for
the benefit of all its operations (not only its mitigation
activities).” Energy Nw., 641 F.3d at 1309 (relying upon
testimony “estimating the portion of . . . overhead costs
fairly allocated to support . . . the mitigation via generally
accepted accounting practices . . .”).
Plaintiffs maintained a particular accounting category
for capital suspense loader costs, which included an
administrative and general pool as well as a functional
specific pool (or a nuclear specific pool). J.A. 1303. As
stated by the manager of property accounting for Plaintiff
Entergy Services, Inc. and recognized by the trial court,
these costs were “calculated based upon the applicable
regulations for capital suspense issued by the Federal
Energy Regulatory Commission.” 79 Fed. Cl. at 64. See
also, J.A. 1303, 1307. In accordance with Plaintiffs’
capital suspense policy, employees maintained records of
work completed in increments of less than 30 minutes
that were associated with a variety of projects. J.A. 1305.
11 SYSTEM FUELS v. US

Monthly allocations distributed the costs across the
variety of projects based on rates established in quarterly
meetings between a representative of the chief accounting
officer and the property accounting group. J.A. 1306,
1308.
The evidence in the record supports SFI Arkansas’
claim for capital suspense loader costs. This court finds
no basis for the trial court’s creation of a rule based on
percentages to justify the exclusion of a claim for capital
suspense loader costs. Therefore, this court reverses the
trial court’s exclusion of these costs in its damages award.
VII.
This court therefore remands for causation analysis in
view of Pacific Gas & Electric Co. v. United States, 536
F.3d 1282 (Fed. Cir. 2008) and Yankee Atomic Electric Co.
v. United States, 536 F.3d 1268 (Fed. Cir. 2008). This
court also affirms the trial court’s denial of an offset in the
damages award by the amount of SFI Arkansas’ one-time
fee and denial of Plaintiffs’ claim for financing costs are
hereby affirmed. This court reversed the trial court’s
denial of Plaintiffs’ capital suspense loader costs.
AFFIRMED-IN-PART, REVERSED-IN-PART AND
REMANDED.
COSTS
Each party shall bear its own costs.
 NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
__________________________

SYSTEM FUELS, INC. AND ENTERGY ARKANSAS,
INC.,
Plaintiffs-Cross Appellants,

v.
UNITED STATES,
Defendant-Appellant.
__________________________

2008-5025, -5035
__________________________

Appeal from the United States Court of Federal Claims
in Case No. 03-CV-2623, Judge Charles F. Lettow.
__________________________

NEWMAN, Circuit Judge, concurring in part, dissenting in
part.

I concur in the court’s opinion and the rulings based
thereon, with the exception of the ruling that damages for
breach of contract cannot include the cost of financing the
construction and storage expenditures required to mitigate
the breach. As explained in my dissenting opinion in the
companion case, System Fuels, Inc. v. United States, No.
2010-5116, -5117, these costs were incurred solely because
of the government’s breach of contract, and thus are recov-
erable as damages for the breach.