first of which would moot the second to the first issue that the court would decide is whether the trial court properly evaluated dam just claims for private fuel storage and increased damages the word casement all the rules we set things back to eighty seven with that change of the standard open more issues well certainly those things with this court identified a problem in the courts causation analyses it actually affirmed in the courts the met manner in which the court conducted it but for world evaluation analysis by saying that it approved of the way the trial court had identified the pot for world and then identified the actual costs and compared to what it found that the rate was improper but the appeal here contrary to the poet's brief was not simply a kitchen sink appeal that appealed every single issue types of costs there for a federal law for a offsite sort of centralized storage facility was not foreseeable at the time of contract award that decision was in a separate paragraph from the ca since and was unrelated to the specific rate of acceptance and in fact would have to be because the time of contract formation is which which is when we look at first the ability there was no rate of acceptance because the rate at the time of contract from nation was going to be decided problem with that is that she cited absolutely nothing to support the foreseeability findings and is this court in an old stone and citizens federal assault you can't simply assume foreseeability there must be factual evidence to support it assumptions are not sufficient but that gets  though there is an exceptional circumstances exception however i will first point out the plaintiff didn't raise that below the court didn't consider it or make up in exceptional circumstances findings and the opponents brief although i did benefit is that in a sentence  responded to departments were made if you were deprived of any opportunity to make your argument no but certainly the purpose of the mandate rule is to you know provide if an hour the two the first decision sticks and it was it appealed or you know the  and that that that issue that remained open and there was nothing in our mandate that left it with regard to proceed to the findings and the speculative in his findings those were unrelated to the rate issue or the causation analysis certainly causation with another part of past but the other findings that went into two under which the court declined to work it out in the first trial were not appealed and there was no basis in the mand here actually did appeal exchanges but it only appealed to trial court's exclusion of their expert witness it did not appeal the actual denial of exchanges on the merits and this court affirm of mr brace but i would like since i have for a short time actually to talk about our so the problems with the exchanges model because this is an issue that is coming up a lot in the cases mr graves is testifying in many ways the nuclear fuel cases using this same model that has the same teeth facts now here we're only talking about a one he will move up but in many other cases such as that dairy manager he's moving people up eight years nine years another case ten year and three ten years and three other cases for twelve years and yet another case and it's all based on a motto in which mr graves if not assumes and he assumes there is going to be a market created to move things back and forth but isn't that a pretty logical we're not denying bu plaintiffs would have these accelerations so that they would move way up in the queue they will be exchanged with and unidentified under in a fight utilities to move that for that to happen under the contract those people who don't provide exchanges in their cases they stay where they are but nobody ever moves back in effect accelerating the acceptance rate that described in a fight and eighty because people some people just get to move to the front of the queue based on a model that isn't based on any kind of real evidence he's doing that to get everything within the six year statute of limitations i'm seeing kind of a theme that every six years we get a big group of these cases because every six years they have to sue in all the all the allocations and comes up at the conclusion this person moves up but we don't know who moved back and as we know one of the problems with his model it seems perfect competence you ask him that question and cross you back to move back what's his answer that his model doesn't might happen not that this how they would have happened he doesn't talk to any a single utility to determine whether they would be willing to go into the market and yet you assumes one hundred percent participation by utilities even though we presented evidence from one utility web that's where they testified no even if we had time to perform we would have been gauged in exchanges wouldn't give up our skewed because there are state regulatory board wouldn't like it and if we did something wrong the experts opinions have to be supported by actual facts and not simply assumptions of l every tildy would engage in the market even though i didn't talk to any of them but there's these are the problems with this type of model that is simply based on on on assumptions and speculation and it's especially difficult here where we have a universe of seventy four lawsuits have been filed in the court of federal claims were everybody is suing for damages based on the government's breach not a single one of those plaintiffs is saying that they would move back in the queue so the government is paying all these folks either for their allocations they have or moving forward in the queue where is but under the contract that's never what  s are fundamental point with respect to the allocation by the first of all and i write that well there's nothing separately in the question presented dealing with p f s but what we did say in the question presented is that the entire methodology that the district court had or the court of federal e s reasonable cost for planning and maintaining additional storage post january ninety eight are properly tried to the government as contract damages once this court corrects the legal errors that in fact the c f c s contract interpretation p genies damages must be there was error in deciding liability inherently if you say that the diet that liability gets set aside the damages get set aside as well and that's exactly what we were saying is that there was no basis for a determination that you the court had completely mis was completely argument with respect to causation if we're saying that the fundamental basis on which the court of federal claims said there is a clause to the storage costs there is a clause to the humble bait arrangement and the exchanges as well and the that's no what we're saying is that if you readjust the allocation date back four years what you'll say is that it was completely foreseeable because these damages the payments made and these are going to listen just then these are actual payments made for the this opportunity affright right of first refusal it against the backdrop of what this court said the last time around was not going to a moral certainty that the government was not going to going to comply with its contract under the at that point in time and that's the basis on which the court said one that wasn't it wasn't foreseeable under those circumstances because we were talking about damages that were completely not caused by the government's breach and so the god of the court the federal claims basically tied the two together  that original opinion and this court's mandates were specific it said this court offers quote a federal claims on every man the opportunity to recalculate damages based on the one nine hundred eighty seven acceptance rate and what our argument had as i just read it to you was all of the damages have to be recalculated so it goes back down to the judge and she examines you know did it affect my assessment with respect to the payments for the private fuels arrangement and she said yes it completely changed my view i had i had made a decision that there was no cause because they expected that the contract was going to comply with i concluded wrong about that and then with respect to the exchanges she said absolutely clear that the exchanges were go take place that's you know essentially conceded here i'm not bringing this as a class action your honour's are just concerned right now for p g and e and this essentially a binary decision that's got to be made were you know under these circumstances where you're talking about less than sixteen million tons of of fuel and twelve hundred tons total allocations and seven hundred more than seven hundred fifty tons held by parties that don't have any particular need under those circumstances you don't need to worry about how clear the house specific this model is or al for you can take it out or any of the concerns the government raises the question is would any rational person not spend seven hundred thousand dollars to save five million dollars in costs and if we did it that way the government would be in here screaming at us that we didn't act prudently by not spending that money in order to protect it from those costs you make a good point that you're only representing your client but don't we clearly has some people moving back in the queue he did what he doesn't do is precisely identify them but i guarantee you that is the government litigates those cases it's going to make the same judgment that that experts being made makes in this context which is did you did you have any reason did you have excess capacity for storage if you did then you have every reason in the world to move back in the queue and they're going to argue that that would be the reasonable action that you would take again remember we're we're dealing in a world of mitigation our duty to mitigate arises under kroger if i've got a big pool it can and that can accommodate ten years more and it's just sitting there and somebody shows up and says look if i can give you which to sit in your pool i will pay you seven hundred thousand dollars to do that and i'll switch with you you can have my allocation next year when you want to take some oil at him and a more reasonable lump anyway i mean it would be irrational are both sides for the parties not to make that exchange under the surface and that is precisely what the court of federal claims decided in this particular that breached the contract and eliminated any basis on which we would have set up these exchanges but again this court doesn't have to worry about how broadly this this particular models can operate all this court has to say to itself is that the court of federal claims make a reasonable reason determination that when you're talking about seven hundred fifty million tons of available capacity and sixteen million tonnes that needs to get moved that that isn't exactly what a party would do and that and that in fact it would have been crazy for us not to do that and it would be equally crazy for somebody else not to do that and to brew it with a seven hundred thousand dollars price i think frankly they'd have probably made that trade for free so good because there's not much go wrong or the other than these and these are groups that are known through it to interact a great deal anyway but we didn't contest that part of it we pay seven hundred thousand dollars for the right to move our to move our spent fuel into their facilities that's what the court found that finding is is unassailable in my judgment it was the court asked for this court asked the court to redetermine to recalculate those damages she didn't according to that the court candidly should affirm so no further questions your  contract award for c ability causation is this court recognizing the an emission or separate requirements there is no explanation either in the court's decision or here today why the great somehow affected foreseeability at the time of question there's never been a single utility who has ever claimed that they were going to move back in the queue or that they had some kind of excess capacity that they were going to give up to somebody else and if you look at joint appendix pages sixteen fifty five fifty six and fifty eight there the testimony of there about why that's a problem why people wouldn't want to do it first there's so much political opposition people get protested by local residents by intervener groups by politicians who are always fighting about a be whether this utility would sell its rights and agree to keep its fuel audience site for a lot longer than it otherwise would after you and with the neighbors next door be ok with that but they want it to be there longer than it and as the mean it's the plaintiff's obligation here they're wanting to move up in the queue we went with the straight off schedule because we don't have a basis given that the court declined trackwork declined our request to consolidate the cases for the purposes of deciding this our cations issue one basis and then go back to the trial court judges individually in each case to then identify the damages basins out cations are the point of screen about that and want that they want to be separate so now we have no basis to you know move some forward with some back as a consolidated proceeding would have permitted instead we have to look at each individual case plaintiffs are not going to willingly say oh yeah we're going to we would have new trader to move back to eight years so you know we get eight years less damages in our case nobody's doing that we're paying everybody based on either off kinds of assumptions that are just based on his own beliefs without any factual support is not sufficient to increase damages here by five million dollars five million and in other cases by even more than that we would ask the court to reverse on these two points thank you