Northern Helex Co. v. United States

634 F.2d 557, 28 Cont. Cas. Fed. 80,804, 225 Ct. Cl. 194, 1980 U.S. Ct. Cl. LEXIS 341
CourtUnited States Court of Claims
DecidedOctober 22, 1980
DocketNo. 454-70
StatusPublished
Cited by70 cases

This text of 634 F.2d 557 (Northern Helex Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northern Helex Co. v. United States, 634 F.2d 557, 28 Cont. Cas. Fed. 80,804, 225 Ct. Cl. 194, 1980 U.S. Ct. Cl. LEXIS 341 (cc 1980).

Opinions

FRIEDMAN, Chief Judge,

delivered the opinion of the court:

This is the third time this case has been before us. It involves the amount of damages to which the plaintiff is entitled for the government’s breach a decade ago of a contract under which the plaintiff agreed to produce and supply helium to the government. The government has challenged the recommended decision of Trial Judge Spec-tor, rendered on remand following our reversal of his prior decision awarding damages that we held were excessive because based on erroneous legal principles. In his latest decision the trial judge ignored our prior decision and [195]*195recommended that damages be awarded on the same legal theories that we rejected in the prior case, but in a significantly greater amount than he previously had recommended.

We hold that our prior decision is the law of the case, and we follow it. We conclude, however, that the government has failed to prove one element for which we ruled in our prior decision that damages could be reduced.1

I.

The government’s termination of the helium purchase program, of which the plaintiffs contract was a part, has been the subject of substantial litigation, both in this court and in others. See Northern Helex Co. v. United States (Northern Helex II), 207 Ct. Cl. 862, 524 F.2d 707 (1975), cert. denied, 429 U.S. 866 (1976); Northern Helex Co. v. United States (Northern Helex I), 197 Ct. Cl. 118, 455 F.2d 546 (1972); Phillips Petroleum Co. v. United States, post at 575; Cities Service Helex, Inc. v. United States, 211 Ct. Cl. 222, 543 F.2d 1306 (1976); National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir. 1973), cert, denied, 416 U.S. 993 (1974); National Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971). It is unnecessary to restate all of the facts pertaining to the helium purchase program; instead, we sketch the basic factual history and describe the procedural situation relevant to our decision.

In 1961, the government entered into longterm contracts with four natural gas producers2 to obtain helium, a byproduct of natural gas production, which it wanted for conservation purposes. The four producers constructed helium processing plants as part of integrated natural gas production facilities. In 1969, the government ceased paying the amounts due under the contracts, and in 1970, [196]*196Northern Helex brought suit in this court, alleging a breach.3 Because of the integrated nature of the plaintiffs operations, it has necessarily continued to use its helium plant to remove helium from the natural gas. In some instances, it found another purchaser for the helium; on other occasions, it has justifiably vented the helium into the atmosphere as a waste product.

In Northern Helex I, supra, we held that the government had materially and totally breached its contract with Northern Helex and that Northern Helex had not waived the breach and was justified in treating the contract as terminated. 197 Ct. Cl. at 134, 455 F.2d at 555-56. We expressly left open all issues relating to damages and returned the case to the Trial Division for an initial determination of those issues.

Trial Judge Spector thereafter recommended that the plaintiff recover the full contract price, including the costs of continued performance, for the remainder of the contract term, less the amounts received from sales to a third party after the breach, storage expenses, and payments made for deliveries after suit was filed. 20 Cont. Cas. Fed. 89,085, 89,132 (Ct. Cl. Trial Div. 1974). On en banc review of that recommended decision, however, the court “reach[ed] a somewhat different result.” Northern Helex II, supra, 207 Ct. Cl. at 868 n.1, 524 F.2d at 709 n.1.

We held that “the plaintiff is not entitled to recover its cost of performance ... of the contract to the end of the contract period” (id. at 878, 524 F.2d at 715), that the price escalation clause in the contract, triggered by changes in the wholesale price index, was inapplicable, and that certain excess values, at that time not yet demonstrated, would be nonrecoverable by the plaintiff. We set forth a six-step process4 for determining the damages to be awarded

[197]*197(id. at 888-90, 524 F.2d at 721-22), and remanded the case for the trial judge to make the recommended findings of fact and calculations necessary to carry out that six-step process.

On remand, however, the trial judge made no attempt to comply with our explicit instructions for computing damages. Instead, he returned to the theory of damages that we rejected in Northern Helex II.5 He stated that "[o]nly payment of the contract price, reduced by the proceeds of any resale of helium to others, will place the plaintiff in as good a position as it , would have been in had the contract been fully performed” (which is the admitted standard, see note 5, supra). He then recomputed the damages, using the same method he had used in his first opinion and that we had explicitly rejected in Northern Helex II. He increased the total damages to reflect changes in the wholesale price index that triggered the contract’s escalator clause (which we had held does not apply in the event of breach). The trial judge recommended an award to the plaintiff of $94,839,000, "subject to further adjustment by reason of proceeds received by plaintiff on the resale of helium to others subsequent to December 24,1970.”

II.

It is "familiar doctrine that a lower court is bound to respect the mandate of an appellate tribunal and cannot reconsider questions which the mandate has laid to rest.” Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 140 (1940). "[A]n inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 306 (1948). After an appellate court has decided a case and remanded to a lower court, the latter court "is bound by the decree as the law of the case; and must carry it into execution .... That court cannot vary it, or examine it for any other purpose than execution; [198]*198... or review it, even for apparent error, upon any matter decided on appeal. . . .” In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895). Indeed, the rule that a lower court must carry out the mandate of an appellate court is so well established that a writ of mandamus may issue to compel such action. General Atomic Co. v. Felter,

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Bluebook (online)
634 F.2d 557, 28 Cont. Cas. Fed. 80,804, 225 Ct. Cl. 194, 1980 U.S. Ct. Cl. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-helex-co-v-united-states-cc-1980.