Dairyland Power Cooperative v. United States

104 Fed. Cl. 400, 75 ERC (BNA) 2083, 2012 U.S. Claims LEXIS 457, 2012 WL 1571012
United States Court of Federal Claims·Decided April 27, 2012·No. No. 04-106 C·Published·Cited by 2 cases

Opinion

OPINION

DAMICH, Judge:

This spent nuclear fuel case comes to the Court on remand. The Court previously awarded mitigation damages to Dairyland Power Cooperative (“Dairyland”) for costs related to Private Fuel Storage, LLC (“PFS”). The Federal Circuit vacated that portion of the damages award and remanded for this Court to determine whether to offset the award to account for profit-oriented speculation. For the reasons set forth below, the Court finds that all of Dairyland’s PFS expenses were properly in mitigation and not unrecoverable due to speculation. Accordingly, the Court reinstates its earlier award for PFS damages.

I. Background

The Court’s trial opinion, Dairyland Power Coop. v. United States, 90 Fed.Cl. 615 (Fed.Cl.2009) (“Dairyland I ”), sets forth the full factual background of this case; the gist of the case is as follows. Between 1967 and 1987, Dairyland operated a nuclear power plant in Genoa, Wisconsin called the La [402]*402Crosse Boiling Water Reactor (“LACBWR”). Id. at 622. Although the reactor is no longer active, Dairyland maintains 38 metric tons of spent uranium in a wet storage pool (at least as of the conclusion of trial). Id. The on-site nuclear waste prevents Dairyland from permanently decommissioning the site. Id. at 650. Under the “Standard Contract,” the Department of Energy (“DOE”) was obligated to accept and dispose of Dairyland’s spent nuclear fuel (“SNF”) beginning no later than January 31, 1998. Id. at 619. Though Dairyland has paid all required fees under the agreement, DOE has, to date, not accepted any SNF from Dairyland. Dairyland I, 90 Fed.Cl. at 621. In 2004, Dairyland filed suit against the government for partial breach of the Standard Contract. Id. at 617. Damages wei’e limited to costs incurred through December 31, 2006. Id. This Court awarded summary judgment on the issue of contractual liability, and the case went to trial for a damages determination. Id.

After trial, this Court awarded Dairyland $37,658,902 in damages, including $11,999,125 for its investment in Private Fuel Storage, LLC (“PFS”).2 Id. at 652. PFS is a private consortium of utilities whose goal is to locate, license, and operate a SNF storage facility. Id. at 647. This Court found that Dairyland invested in PFS in order to mitigate the cost of the government’s breach. Id. at 622. The driving consideration behind Dairyland’s investment was its perceived need for off-site storage to allow it to decommission the shutdown LACBWR plant. Id. at 647, 651. At the time, the small LACBWR site posed geographical constraints for constructing another storage facility. Id. at 647, 651. On the other hand, PFS would have allowed Dairyland to share the high cost of constructing an interim, off-site storage facility.3 Id.

On appeal, the Federal Circuit upheld all aspects of this Court’s damages award except Dairyland’s costs for PFS. Dairyland Power Coop. v. United States, 645 F.3d 1363, 1377 (Fed.Cir.2011) (“Dairyland II”). It found that this Court’s causation analysis was lacking in detail because the Court did not address whether Dairyland had overinvested in PFS beyond what was necessary for mitigation, as the government had argued. Id. at 1376. The Federal Circuit held that the government had “raised the specter of a bounty accruing to Dairyland from its PFS investment, [and, therefore,] Dairyland had the burden to prove how much, if any, of its PFS investment was speculative as opposed to mitigation-oriented.” Id. Accordingly, the Federal Circuit vacated the award of PFS costs, and remanded for this Court to determine “the amount to offset Dairyland’s award of its PFS investment to account for speculation (if indeed there was speculation).”4 Id.

On remand, the Court ordered briefing on the mitigation-speculation issue. The Court denied the government’s request to reopen the record.5 Dairyland Power Coop. v. United States, 103 Fed.Cl. 640 (2012). Oral argument was held on March 28, 2012. The government contended that, in addition to determining whether to offset for speculation, the Federal Circuit’s remand requires this Court to re-examine the reasons behind Dairyland’s investment in PFS and to perform an accounting of the residual value of the PFS stock. For the reasons that follow, the Court finds that all of Dairyland’s PFS damages were in mitigation and that the additional issues raised by the government are not properly before the Court.

II. Standards for Review

“The remedy for breach of contract is damages sufficient to place the injured [403]*403party in as good a position as it would have been had the breaching party fully performed.” Ind. Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed.Cir.2005). A party has an affirmative duty to mitigate its damages in the face of an anticipated breach of contract. Id. at 1375. Its mitigation efforts must be fair and reasonable under the circumstances. First Heights Bank v. United States, 422 F.3d 1311, 1316 (Fed.Cir.2005). However, the burden is on the breaching party to show that reasonable alternatives for mitigation existed and were ignored. Franconia Assocs. v. United States, 61 Fed.Cl. 718, 741 (Fed.Cl.2004).

Mitigation damages are recoverable in partial breach cases. Ind. Mich., 422 F.3d at 1375. Such damages “are intended to reimburse a non-breaching party to a contract for the expenses it incurred in attempting to rectify the injury the breach caused it.” Citizens Fed. Bank v. United States, 474 F.3d 1314, 1320 (Fed.Cir.2007). The non-breaching party bears the burden of proving its damages. See Ind. Mich., 422 F.3d at 1376. Proof of mitigation damages is made by establishing the three elements of foreseeability, causation, and reasonable certainty. Id.

Only causation is at issue in this remand. Dairyland II, 645 F.3d at 1376. The Court previously adopted the “but for” test for measuring causation in this case. Dairyland I, 90 Fed.Cl. at 624. In the “but for” test, “a plaintiff may recover only for those losses that would not have occurred but for the breach.” Anchor Sav. Bank, FSB v. United States, 597 F.3d 1356, 1366 (Fed.Cir.2010). The breach need not be the “sole factor or sole cause” of the loss, as “other factors operating in confluence with the breach will not necessarily preclude recovery.” Id. However, “the non-breaching party should not be placed in a better position through the award of damages than if there had been no breach.” Bluebonnet Sav. Bank, F.S.B. v. United States, 339 F.3d 1341, 1344-45 (Fed.Cir.2003).

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Dairyland Power Cooperative v. United States, 104 Fed. Cl. 400, 75 ERC (BNA) 2083, 2012 U.S. Claims LEXIS 457, 2012 WL 1571012 (uscfc 2012).

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