reflects an interpretation a binding interpretation of the court's decision in the nebraska public power and in fact the court in southern nuclear specifically held that its analysis was consistent with the on bob decision going nebraska public power on page thirteen zero six of the decision in southern nuclear it specifically addressed n k v d and it said nebraska power said very clearly that the in the brief could not be excused by an avoidable damages but to say that breach doesn't proceed is a breach there you're not fighting that there's liability richard saying there's no damages because the breach was excused isn't that the people contradiction in terms of either you have a breach or you don't have a breach i don't think so and first i want to make clear that this initiative is already been decided by southern nuclear and by the buying decision instead of nuclear but i'm happy to address the merits of that  would have been way but knew what button press the power had clearly stated in advance that there couldn't be one well there are two statements in the southern nuclear decision on earth that specifically state not compelled by the d c circuits mandamus order that was the holding of southern nuclear and it's important to recognize that the court was fully aware of the scope of the n p p opinion when it issued the its decision in the nuclear and it specifically jurisdiction and beyond the scope of the united states waiver of sovereign immunity and what it specifically said was in that council is correct that that caviar that it's that that it carved out when it said we're not interpreting the standard contract or or anything  except to the extent compelled by the statutory directives set forth in section three zero two eight five but says the statutory directive says nothing about what the parties can agree to these of the the effect a scenario perhaps in our brief where there are two conflicting lines of authority perhaps one is decades twenty thirty forty years old something like that and the trial court is unaware of the existence of a conflicting line of the farty and then in that circumstance it might be appropriate for subsequently to say wait a second this opinion ignores what happened fifty or sixty years ago and we have to go back with what happened fifty or sixty years ago but this is a situation quite unlike that this is a situation where the court was fully aware of what it did the decision i made only a few years earlier in n p t and it specifically said we are not trampling on anything that was decided in n p t we are aware of what happened we know what the scope of the decision is we are interpreter we are developing the law that's judgment of energy suggest otherwise the trial court in fact simply rejected that argument because that was essential to the court's judgment and therefore part of the holding i would like to turn to at least with the remainder  indiana michigan decision as well as in the initial northern states power decision from the d c circuit but the d c circuit made it very clear on rehearing in northern states powered that breach of the contract was not a breach to a portion of the nebraska power case that was only trying by two judges the concurrence you're essentially asking us to make that part of the nebraska power on  or what i think it is what your honor because now we've got three judges the only judges who have spoken to the issue at all who have said well i will no longer hear him three more here pretty soon so we hear from  and particularly what he referred to as the implicit holding the panel decision the unavoidable delays clause has been raised but he ultimately concluded correctly in arguing that southern nuclear contradicts n p t and he was obliged to follow the in bank decision case should be the deciding how do we get to the situation because the southern panel didn't follow the n p p majority said rather soft to neuter that decision but as we discussed in our brief there's a fairly straightforward way that this court can avoid confronting the judge damage referred to as the annex unviable position where a panel decision contradicts the earlier and bank decision as the alternatively healthy unavoidable lays clause only applies where performances begun and of delay applies to the unavoidable delays caused while the government says that's a typo they waited five years to ever raise it they never brought it to the attention of the n s p to panel and simply that is the law and that the government would a soon ignore that binding precedent as the binding precedent of n p t so we think that the court could easily say there's no delay here there's no unavoidable delay here so we don't need to get t was issued in response to the one nine hundred ninety seven people in their determination which we tried to excuse all of its delays and the d c circuit said we're not going to let them do that because that would let them get off the hook for monetary damages liability versus unavoidable breach as a defense to damages they never thought to raise that issue when they sought rehearing at n s b one when they went to the supreme court when they went to this court in n s p to remain yankee or in any of their br but what the d c circuit said is iris statutory interpretation will affect contract grammies it will affect damages and this court and banks specifically recognize that the d c circuit said that we will not allow the u a e to use its interpretation of the nuclear waste policy to interfere with the statutory obligations and that includes their interpretation as it's applied through the interpretation is in conflict the statutory interpretation which this court accepted as res judicata and acknowledges that found by that governments so there's no reason whatsoever that they can hide behind the statutory interpretation and say that you know it cuts off as soon as we switch courts they're bound they're bound in the d c circuit they're bound in this court they're bound in the court of federal cla six it says the order this is the majority does not address any issue of contract groups direct the implementation of any remedy or construe any contract defen accept to the extent that the proposed interpretation of the contract would conflict with the states for direct so this court said to the extent that contract remedy the application of contract remedy is in conflict with the statutory directive the statutory rector prevails and i think the important point to note that in southern new players on page thirteen zero six when the court said indeed we consider the government's argument and held that the district of columbia circuit had jurisdiction to enter the mandamus order and that its decision and nor the states was entitled to raise due to cut effects on the issue of liability but that it did not direct the implementation of any remedy what did they leave out in that quote they left out the key portion of the and bank decision which is except to the extent that it's in conflict with the statutory direct the other issue i want to bear in mind is that if the order really the d c circuit sorter really only applied an issue of liability or only applied as the government would have then why did we waste our time and n p p d why did all the judges think it was so important to decide the validity of the d c circuit sword if in fact they had the the government had the authority to raise unavoidable delays as a defense to damages who cares if the d c circuits order is valid or invalid if it's valid they can raise it if it's invalid they could raise it so why did we waste our time figuring out whether sovereign immunity applies so the logic of the government's position and the logic of southern nuclear just fall flat on its face you can't have a risk that applies the way they would have because otherwise we've gone through a fruitless exercise the other point i'd like to make this quickly is the distinction between damages and  and the concurrence say we read the majority opinion this way that never cite the majority opinion there is nothing in the majority opinion that makes that statement and indeed if you look back through all the case law and all the bre never find that distinction at all it's a distinction that just doesn't exist it was created as far as we can tell during the course of the litigation and the government never made that distinction and we think this court's ignore it as well we think there is an easy way to solve this problem which is to say that unavoidable delays simply doesn't apply however if you need to go and look at the two cases we think the n d p decision made it very clear that the ri that the parties could not have agreed to include such a clause in the contract the government complied with the statutory directive and there is nothing within the government's argument based on the un envoy by the way the clause that would violate any such on a board of statutory directive to the extent that there's anything unconditional the unconditional obligation is to include an unconditional obligation within the contract and the government has undertaken that obligation and the parties both agreed to the existence of an unavoidable delays was and we find it rather interesting that at this point in time in to quote councils words here councils position was that any indication of the unavoidable delays clause would be inconsistent with the nuclear with policy act well that's an interesting position now given that they any such argument should have been made  it is that that clause would be void i would also note that entergy apparently would like to have the benefit of the end of the unavoidable delays caused to the extended benefits because the clause works both ways but doesn't want to have the flipside doesn't want to have to u ndertake the obligation to do that associated with the flip side of the unavoidable delays caused very briefly i want to talk about that the typo argument this issue has been to the court twice already this court i think correctly has declined to take the that the d c circuit specifically contemplated that its decision would affect damages i don't think that's correct i think the court made very clear the d c circuit made very clear in the wisconsin elector case that it in no way shape or form was  indicating that it wanted to have an effect on any of those sorts of ratifying that and applied to damages i don't think the federal circuit ratified that isn't as much as it said we are not in any way getting to the statutory interpretation question that