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Entergy Nuclear Fitzpatrick, LLC v. United States

ELR Citation: 43 ELR 20089
Nos. 2012-5059, (Fed. Cir., 04/02/2013)

The Federal Circuit held that the United States may not use the "unavoidable delay" defense in breach of contract actions stemming from its failure to accept spent nuclear fuel (SNF) from the nation's nuclear utilities. The Standard Contract provided that DOE was to begin accepting SNF no later than January 31, 1998, but it failed to do so. Since then, dozens of Standard Contract holders have sued the government seeking damages for DOE's delay in accepting SNF. The government argued it may raise the Standard Contract's unavoidable delays clause as a defense limiting its damages for failing to accept SNF starting in January 1998. But the D.C. Circuit previously issued a writ of mandamus precluding DOE from advancing any construction of the Standard Contract that would excuse its delinquency on the ground that it has not yet established a permanent repository or an interim storage program. The government did not dispute that the court's mandamus precludes the clause as a defense to liability for failing to begin accepting SNF on January 31, 1998. Instead, the government contended it is not precluded from asserting the clause as a defense to monetary damages arising from that breach. But the D.C. Circuit's mandamus order is entitled to res judicata effect and precludes the use of the unavoidable delays clause as a defense to both liability and damages.