# United States Court of Appeals **for the Federal Circuit**

__________________________
INDIAN HARBOR INSURANCE COMPANY , Plaintiff

- Appellant,

v. UNITED STATES , Defendant

- Appellee.

__________________________
2012

- 5030

__________________________ Appeal from the Un ited States Court of Federal Claims in c ase n o. 10

- CV

- 680, Senior Judge Eric G. Bruggink

.

_________________________

Decided : January 11, 2013

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S COTT A. S CHIPMA , Winston & Strawn LLP, of Was hington, DC, argued for plai n tiff

- appella nt. With him on the brief was D AVID C. R OMM

.

D AVID D’ ALESSANDRIS , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, argued for defendant

appellee. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Director, and F RANKLIN E. W HITE , J R ., Assistant Director.INDIAN HARBOR INSURANCE CO v. US 2

Of counsel on the brief was J ONELLE D ILLEY , Trial Atto rney, Navy Litigation Office, Office of the General Counsel, United States Depar tment of Navy, of Washington, DC.

__________________________
Before N EWMAN , L OURIE , and O’ M ALLEY , Circuit Judges

. O’ MALLEY , Circuit Judge

. Indian Harbor Insurance Company (“Indian Ha r bor”) appeals the f i nal judgment of the Court of Federal Claims dismiss ing Indian Harbor’s Second Amended Complaint

. In that complaint, Indian Harbor sought reimbursement under Section 330 of the N a tional Defense Authorization Act of 1993, Pub. L. No. 102

- 484, Div. A, Title IU, § 330, 106 Stat. 2315, 2371 (Oct 23, 1992), ame nded by Pub. L. No. 103

- 160, Div. A, Title X, § 1002, 107 Star. 1547, 1745 (N ov. 30, 1993) (“Section 330” ) for environmental cleanup costs associated with the development of property fo r me rly used as a military base. The Court of Federal Claims determined that Indian Harbor failed to identify a “claim for personal injury or property” that triggered the go vernment’s duty to indemnify under Section 330, In dian Harbor Ins urance Co. v. United States , 100 Fed. Cl. 239, 240 (Fed. Cl. 2011) and, thus, dismissed t he co m plaint under Rule 12(b)(6) of its rules

. Because we di s agree with the trial court’s interpretation of the requirements of Section 330

, we reverse the dec i sion of the Court of Fe deral Claims and remand for pr o ceedings in accordance with this decision

.
I.

Section 330 requires the Department of Defense to i ndemnify subsequent owners of former military bases against certain claims arising from environmental co ntamination:INDIAN HARBOR INSURANCE CO v. US 3

(a) In general

-- (1) Except as provided in par agraph (3) and subject to subsection (b), the Secr etary of Defense shall hold harmless, defend, and indemnify in full the persons and entities d escribed in paragraph (2) from and against any suit, claim, demand or a c tion, liability, judgment, cost or other fee arising out of any claim for pe rsonal injury or property damage (including death, illness, or loss of or damage to property or ec ono m ic loss) that results from, or is in any manner predicated upon, the release or threatened release of any hazardous substance, pollutant or co n taminant, or petroleum or petr o leum derivative as a result of Department of Defense activities at any military install a tion (or portion thereof) that is closed purs u ant to a base closure law.

Section 330(a)(1). The right to indemnification extends to

any persons or e ntities that acquire ownership or control of land formerly used as a military installation. Section 330(a)(2). This includes states, state agencies, political subdivisions of a state, and any successor, assignee, transferee, lender, or lessee. Id. Inde mnification is not available to entities who contributed to the release of the hazardous contaminants. Section 330(a)(3).

II.

Marine Corps Air Station Tustin ( “MCAS Tustin” ), a military base in southern California, was scheduled for realignment and closur e in 1993 pursuant to the Defense Base Closure and Realignment Act of 1990, 10 U.S.C. § 2687 (2000) (“B ase Closure Act ” ). In 1992, the City of Tustin, California, was designated as the Local Redeve lopment Authority tasked with preparing a plan to receive, reuse, and develop the former base. The base was off i cia l-INDIAN HARBOR INSURANCE CO v. US 4

ly closed in 1999. The Navy, in cooperation with the United States Environmental Protection Agency, the California Environmental Protection Agency Department of Toxic Substances Control (“DTSC” ), and the Santa Ana Regional Wate r Quality Control Board (“RWQCB” ), organized an effort to investigate and clean up possible environmental contamination prior to transfer . This work culminated in a certification by the Navy that the base was suitable for tr ansfer.

The Navy then conveyed t he base, via quitclaim deed

, to the C ity of Tustin, California on May 13, 2002. In cluded in the deed were covenants guaranteeing that all necessary remedial action had been or would be taken by the government. Of relevanc e here, the deed included specific recognition of the government’s indemnification duties under Section 330: “2.7 Indemnification Regarding Transferees. The GRANTOR hereby recognizes its oblig ations under [Section 330].” The C ity of Tustin selected Tust in Legacy Community Partners, LLC ( “TLCP” ) as the Master Developer of the acquired property and conveyed and/or leased various portions of the former MCAS Tustin property to TLCP for residential and commercial deve lopment. Prior to TLCP’s acquisition of t he property at issue, TLCP obtained, from Indian Harbor, in surance policy No. PEC0010756 (“TLCP Policy” ) providing, inter alia, coverage for certain remediation expenses incurred during development of the TLCP property.

In August 2007, while surface gradin g certain po rtions of the TLCP property, TLCP discovere d total petr oleum hydrocarbon (“TPH” ) contamination in the soil. TLCP notified the Navy of the contamination and

, in September 2007, TLCP entered into a Voluntary Cleanup Agreement with the DTSC. The stated p urpose of the Voluntary Cleanup Agreement was for TLCP “ to obtainINDIAN HARBOR INSURANCE CO v. US 5

the best available guidance and technical oversight from DTSC in preparing and implem enting a Site Management Plan (“SMP” ) and, if warrant ed, Removal Action Wor kplan(s).” J. A

. 42. Six months later, the RWQCB sent TLCP a letter responding to TLCP's notification regarding petroleum contamination on the site. The RWQCB letter identified threatened contamination and stated:

the contamination at the site must be fully cha rac te r ized, and appropriate remedial action must be ta k en. A work plan and time schedule for conducting these activ i ties must be submitted, in

acco r dance with State Water Resources Control Board (SWRCB) Res o lution No. 92

- 49.

J. A

. 34. The letter explicitly recognized th e ongoing in volvement of the DTSC and stated that the RWQCB had “no objection to TLCP continuing the work required by this letter under its existing oversight agreement with DTSC.” Accordingly, the RWQCB directed TLCP to continue working with DTSC staff t o “establish appropr iate cleanup goals for the soil and groundwater at the TLCP site, for the protection of human health and the environment.” J. A

. 34. Discoveries of similar and/or related TPH contaminated soils on certain portions of TLCP property foll owed in 2007, 2008

, and 2009. TLCP submitted its site management plan to DTSC for approval in August 2009. DTSC formally approved the plan, noting that it complied with the requirements of the Voluntary Cleanup Agreement between the parties. Over the ne xt year, TLCP completed the majority of its rem ediation efforts.

Beginning in 2007, TLCP submitted claims to I n dian Harbor under the TLCP Policy seeking reimburs e ment for costs associated with the remediation of TPH contamin a-INDIAN HARBOR INSURANCE CO v. US 6

tion. Indian Harbor complied w ith its oblig a tions under the policy and, at the tim e of initiating this action, had reimbursed TLCP an a mount in excess of $5,000,000 for costs associated with the remediation of TPH contamin ation at the former MCAS Tustin. Indian Harbor r e ques ted indemn ification from the Navy in a letter on July 31, 2009. On April 14, 2010, Defendant issued a final dec ision denying Indian Harbor’ s Section 330 Claims.

Indian Harbor subsequently filed suit in the Court of Federal Claims seeking $5,331,872.09, plus intere st and any additional amounts proven at trial, pursuant to Section 330. The United States moved to dismiss. Fo llowing briefing by the parties, oral argum ent was held on June 20, 2011. On June 28, 2011, the Court of Feder al Claims granted Indian Harbor’ s unopposed motion to file its First Amended Complaint, which clarified Count II of the Complaint. On July 5, 2011, the Court of Federal Claims g ranted the Defendant’ s motion in part, dism is sing Count I of Indian Harbor’ s Complaint on grounds that Indian H arbor failed to allege facts plausibly suggesting the existence of a “ claim for personal injury or property damage” as required under Section 330.

In its opinion, the Court of Federal Clai ms focused on what constitutes “ a claim for per sonal injury or pro p erty damage” triggering the government’ s duty to inde m nify under Section 330. Specifically, the court questioned whether the correspondence received by the TLCP from state regulators demanding that the developer remediate the pollution properly constitut ed a “ claim for pers onal injury or property damage” and, in construing the terms of Section 330, made several interpretive findings. A ccording to the court below, Section 330 only contemplates indemnification where “the owner or developer of a former mili tary property is subject to some action broughtINDIAN HARBOR INSURANCE CO v. US 7

against him” by a third

- party

. Indian Harbor , 100 Fed. Cl. at 243. Thus, a third

- party claim for personal injury or property damage, “regardless of how the third

- party allegation is denominated (a suit, cla im, action, etc.) and regardless of how fully developed it is (a mere demand or a judgment)”, is a necessary predicate for indemnification under Section 330. In addition

, the Court of Federal Claims determined that “ a straightforward reading dictates that the action brought by the third

- party must allege injury to that person or damage to his property. ” I

d. at 244 (emphases in original ). The court provided the example s of a property d eveloper sued by a downstream farmer whose water supply had been contam inated by toxic runoff from the developer’ s land and a developer receiving a demand letter from home buyers subsequently diagnosed with cancer as being subject to indemnification under Section 330. Id. But the Court of Federal Claims emphasized that “ a d eveloper who must clean up its own lands that were insufficiently remediated by the gover nment prior to transfer ” is not entitled to compensation under the statute. Id.

The Court of Federal Claims recognized that its d ec ision w as contrary to a previous Court of Federal Claims holding in Richmond American Homes of Colorado, Inc. v. United States , 75 Fed. Cl. 376 (2007), but found that the court there had relied inappropriately on legislative history in interpreting t he plain language of the statute. Instea d, the Court of Federal Claims looked approvingly
to a later decision in American International Specialty Lines Insurance Company v. United States , No. 05

- 1020, 2008 U.S. Claims LEXIS 481, 2008 WL 1990859 (Fed. Cl. Jan. 31, 2008), where the court h eld that a letter from the DTSC requiring remediation could not be the basis of a claim under Section 330. The trial court consider ed Indian Harbor’s argument that the legislative history ofINDIAN HARBOR INSURANCE CO v. US 8

Section 330 supported a broader reading of triggering claims

, but determ ined that

, as a general matter, “ reference to legislative history is inappropriate when the text of the statute is unambiguous, ” Indian Harbor , 100 Fed. Cl. at 244 ( citing Dept. Of Housing and Urban Dev. v. Rucker , 535 U.S. 125, 132 (2002) )

, which it concluded was the case with Section 330. The court noted, moreover, that statements made by Senator John McCain of Arizona on which the court relied i n Richmond

, had been made in connection with a version of Section 330 that did not contain language requiring a “ claim for personal injury or property damage ” a s a predicate to indemnification because that clause was a dded to the bi ll by the conference committee, after legislators’ statement s in support of the bill had been recorded.

After construing the statute, the C ourt of Federal Claims held that the DTSC and RWQCB ’s communic ations with the TLCP were not “claim[s] for personal injury or property damage” within the meaning of Section 330. In so finding, the court e xpressly rejected Indian Harbor ’s arguments tha t a state’s environmental regulatory a ctions designed to prevent injury to its citizens or damage to their property trigger indemnification under Section 330. Specifically, the court found a distinction between a state enforcing a generally applicable env ironmental regulation pursuant to its police power and, as plaintiff argues is the case here, the state bringing a legal claim ex rel its citizens. Having found that Indian Harbor is not entitled to Section 330 indemnification, the C ourt of Federal Claims declined to consider the government’s argument that Indian Harbor’ s initial reluctance to provide proper documentation regarding its claim was an independent basis upon which the government legit i mat ely could refuse to indemnify TLCP for its remedi a tion

c osts.INDIAN HARBOR INSURANCE CO v. US 9

On September 30, 2011, Indian Harbor requested leave to file its Second Amended Complaint, removing Count II of the Complaint which requested relief under the Comprehensive Environmental Response, Compens ation, and Liability Act of 1980

. The Court of Federal Claims granted Indian Harbor’ s motion on October 27, 2011 and deemed the Second Amended Complaint, which contains only Count I, relating to Section 330, filed as of that date. The Court of Federal Claims then entered final judgment dismissing I ndian Harbo r’ s Second Amended Complaint on October 31, 2011. Indian Harbor timely appealed and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

III.

We review de novo a decision to dismiss a co m plaint for failure to state a claim under RCFC 12(b) (6), just as we do dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cary v. United States , 552 F.3d 1373, 1376 (Fed. Cir. 2009). A complaint must be di s missed under Rule 12(b)(6) when the facts asserted do not give rise to a legal remedy. Lindsay v. United States , 295 F.3d 1252, 1257 (Fed. Cir. 2002). “ [A] complaint must allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief.” Acceptance Ins. Cos., Inc. v. United States , 583 F.3d 849, 853 (Fed. Cir. 2009) ( quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557 (2007)). An underlying issue of statutory interpret a tion is a question of law, which we review de novo. No r folk Dredging Co. v. United States , 375 F.3d 1106, 1108 (Fed. Cir. 2004).

When i nterpreting a statute, we start with the la nguage of the statute itself. Williams v. Taylor , 529 U.S. 420, 431 (2000). We search for Congress’ s intent usingINDIAN HARBOR INSURANCE CO v. US 10

both the text and structure of the statute. Alexander v. Sandoval , 532 U.S. 275, 288 (2001). In reviewing the statute’s text, we give the words “their ‘ordinary, conte mporary, common meaning,’ absent an indication Congress intended them to bear some different import.” Williams

, 529 U.S. at 431 ( quoting Walters v. Metro. Educ. Enters., Inc. , 519 U.S. 202, 207 (1997)); see also Moskal v. United States , 498 U.S. 103, 108 (1990) (“In determining the scope of a statute, we look first to its language, giving the words used their ordinary meaning.” (citations and internal quotation marks omitted)). If the statute is clear and unambiguous, then the plain meaning of the statute is generally conclusive, and we give effect to the una mbi guously expressed intent of Congress. Sullivan v. Stroop , 496 U.S. 478, 482 (1990). When the statutory language is ambiguous , legislative history can be useful in determi n ing Congressional intent. See In re Swanson

, 540 F.3d 1368, 1376 (Fed. Cir. 2008).

A.

Indian Harbor first argues that the Court of Fe d eral Claims erred in holding that a valid claim for indemnification under Section 330 must a rise from a third

- party “action” against the Section 330 claimant. The gover nment argues that the court below created no new r equirement for an “action” and that the Court of Federal C laims expressly recognized that “a variety of procedu ral devices can trigger indemnification - a suit, claim, d emand or action, liability, judgment, cost or other fee - they all share a common genesis.” J. A

. 9. Thus, according to the government, the Court of Federal Claims was merely describing the relatio nship between the various clauses of the statute in order to elucidate the plain meaning of the statutory text, and used the term “action” as shorthandINDIAN HARBOR INSURANCE CO v. US 11

for the clause in Section 330 articulating the various ways that indemnification could be triggered.

Alt hough the p lain language of Section 330 is clear that there must be a “suit, claim, demand or action, liability, judgment, cost or other fee arising out of any claim for personal injury or property damage

, ” we find no support for the proposition that the c laim for personal injury or property damage must be adversarial. Specifically, we agree with the reasoning of the Court of Federal Claims in Richmond , finding that a state agency’s exe rcise of its regulatory authority demands compliance and suffices to me et the requirement of a “claim” under Se ction 330. 75 Fed. Cl. at 393 (“Under the circum stances of this case, the CDPHE’ s exertion of regulatory authority cannot be construed as a mere ‘invitation to voluntary action.’ The Compliance Advisory directs its recipients to comply now or pay the price in fines later. ” ) (internal citations omitted). Thus

, we see no reading of the plain language resulting in the conclusion that that t he RWQCB’s communications with TLCP do not constitute a

“ claim” under Section 3 30.

The May 14, 2008, letter clearly articulates a threat to groundwater in the S tate of California, identifies the RWQCB as a responsible party for the protection of said groundwater, and provides the statutory authority for the RWQCB to take enforcemen t action “for failure to cleanup and abate waste discharges, and to take necessary rem edial action .” J.A. 34. As Indian Harbor emph a sized at oral argument, this letter merely represents the first step in which the State of California, through the RWQCB, enforces environmental regulations related to water quality. Under the California Water Code, Sections 13304 and 13350, the RWQC B has the authority to, inter alia, seek injunctive relief prohibiting certain conduct orINDIAN HARBOR INSURANCE CO v. US 12

requiring compliance with a clean

- up order, recover monetary damages either civilly or pursuant to the code, or institute its own clean

- up of the a ffected areas and then seek reimbursement and penalties from TLCP. 1 Like the claimant in Richmond , TLCP was not in a pos ition to ignore the commu nication from the RWQCB.

B.

The Court of Federal Claims additionally held that “a straightforward reading dictates that the action brought by the third

- party must allege injury to that person or damage to his property” and that “Section 330 requires indemn ification only when an entity . . . is su b ject to a third

- party proceeding arising from an injury to that third

- party or damage to its property . . . .” Indian Ha rbor , 100 Fed. Cl. at 244 (emphasis in original). Indian Harbor argues that the C ourt of Fed eral Claims erred in imposing an ownership requirement on the third

- party bringing the “ action .” The government disagrees with Indian Harbor’s characterization of the court’s holding and asserts that the court did not cre ate a statutory requirement of “ow nership” but merely explain ed that the third

- party claimant itself must suffer personal injury or property damage . The government’s characterization more accurately reflects the court’s decision but we non etheless find that decision to be in error.

As with its findings regar ding a proper Section 330 third

- party claimant, the C ourt of Federal Claims pr ovides no justification for its requirement that the claim

1 Likewise, because Section 330 explicitly autho ri zes the recovery of costs associated with “threatened r elease of any hazardous substance ,” the RWQCB need not have waited for actual release o f hazardous materials into the groundwater prior to making its claim against TLCP.INDIAN HARBOR INSURANCE CO v. US 13

for property damage relate to injury or damage to the claimant itself or the claimant’s property. We agree t hat “Section 330 would unquestionably apply to a property developer who was sued by a downstream farmer whose water supply had been contaminated by toxic runoff from the developer’ s land” or to “a residential developer of a former base who receiv ed a demand letter from home buyers subsequently diagnosed with cancer.” Id. From those unsurprisingly indemnified scenarios , however, the Court of Federal Claims leaps to the conclusion that Section 330 must not apply to “a developer who must clean up i ts own lands that were insufficiently remediated by the government prior to transfer.” Id. We disagree. By its plain language

, Section 330 protects a purchaser of the land against “cost[s] or other fee[s]” arising out of property damage (including econo mic loss) that results from the release or threatened release of any hazardous substance. Nothing in Section 330, however, requires that the claimant itself suffer personal injury or own the damaged property. As such, we see no reason why e xpe n ditures as sociated with remedies pursued by the RWQCB against TLCP

— whether they be, for example, costs resulting from a clean

- up order or imposed pena lties— are not properly considered a “ cost or other fee” within the meaning of Section 330.

C.

The Court of Federal C laims is correct that, as a ge neral matter, “reference to legislative history is inappr opriate when the text of the statute is unambiguous.” Dep ’t o f Housing & Urban Dev. v. Rucker , 535 U.S. 125, 132 (2002). As discussed above, we find no ambiguity in th e statute necessitating reliance on anything other than the plain language of Section 330 . We note , however, that our interpretation is fully consistent with the legislativeINDIAN HARBOR INSURANCE CO v. US 14

his tory surrounding the enactment of Section 330 and the overall statutory scheme incentivizing base transfer. As the Court of Federal Claims in Richmond recognized, looking to the interaction of Section 330 and the Base Closure Act, Section 330 is consistent with the Base Closure and Realignment Commission ’s underlying purpose, which is to encourage economic development of former military facilities and their surrounding popul ations. Richmon d , 75 Fed. Cl. at 386 -8 7 (collecting refe rences) . “These goals can only be achieved by addressing the potential disincentives and environmental risks inherent in assuming ownership of property that was once used by military services.” Id.

Indian Harbor also points to statements made by Senator McCain in oppos ition to an earlier version of Section 330 which would have insulated the Government from liability rather than protect a purchaser of former military property. Like the court in Richmond , we find it useful to quote Senator McCain’ s comments at length:

Under current law, receivers of closed base pro perty can be successfully sued for poll u tio n caused by Defense Department activ i ties. Such suits might include environmental cleanup orders or civil da m age claims.

This situation is unjust and it must be rem e died. We simply cannot ask States or businesses to a ssume potentially devastating liabil ity for cond itions they did not create. Moreover, the Federal Government has a duty to accept full and unco nditional respo n sibility for its actions.

Last year, I introduced legislation to ensure that the Federal Government remains fully responsibleINDIAN HARBOR INSURANCE CO v. US 15

for h azardous waste problems at military install ations after base closure. The bill requires the D epartment of Defense to defend, hold harmless, and indemnify inn o cent receivers of the property against claims arising from pollution caused by military a c tivitie s.
This protection is absolutely critical if we are to promote the timely and efficient transmi s sion of base property to new and productive uses. How many States or employers are anxious to acquire base property without such protection?

* * *

In many c ases, hazardous dumping by the mil itary occurred prior to the enactment of our env ironmental laws. Such dumping probably would not be defined as negligent. Under the committee bill [proposed amendment] that would mean r eceivers of closed base property co uld not receive indemnific a tion. The unfortunate result is that the i n nocent property owner pays for Uncle Sam's mistakes.

* * *

Mr. President, base closure is a difficult and traumatic period for local economies which have grown dependent on the employ ment and ec o no mic activity provided by defense installations.

We have a Federal obligation to help facil i tate a safe and timely transfer of base pro p erty to other productive uses. We cannot possibly achieve that goal if those who would put that property to use must risk ever y thing in the process.INDIAN HARBOR INSURANCE CO v. US 16

We must do what is right - ensure, without cond ition, that the Federal Government will defend and indemnify states and employers who are sued over pollution caused by Fe d eral activities. My amendment will acco m plish that goal.

138 Cong. Rec. 25905

- 06 (1992)

. Indian Harbor also directs us to a letter from the Department of Defense to Senator McCain

— made part of the congressional record

— expressing its displeasure with Section 330:

This is in reply to your letter of November 5, 1992, to Secretary Cheney, requesting co n firmation that the Department will apply those provisions of the 1993 Authorization Act . . . which require the D epartment to i n demnify certain transferees of DoD real property.

* * *

Quite frankly, t he Department did not support e ither [the FY 93 Authorization Act or the FY 93 Appropriations Act], largely because of the dr amatic impact both may have on the D e partment's liability. The Depar t ment does not hesitate to shoulder its responsibility for cle aning up co n tamination. However, both Acts a p pear to go much father, perhaps effectively eliminating such legi timate limitations on the Department's liabi l ity as defense under the Tort Claims Act and other d efenses. The wholesale shift of all risks to th e D epartment may, unfort u nately, delay the transfer of base closure properties until the D e partment can adequately assess its risks with r e gard to those properties.INDIAN HARBOR INSURANCE CO v. US 17

Letter from David Berteau, Principal Dep. Asst. Secretary of Defense, to Sen. McCain (Feb. 3, 1993) 139 Cong. Rec. 15156

- 57 (1993)

. Both the government and the C ourt of Federal Claims dismiss the legislative history as misleading and inappl icable. While the C ourt of F ederal Claims is correct that Senator McCain’s statements refer to an earlier version of the statute that did not contain the phrase “claim for personal injury or property damage,” we , like the court in Richmond

, find these statements

— and the Department of Defense’s contemporaneous interpret ation— useful in confirming our reading of the unambiguous plain la nguage in Section 330. There is nothing to suggest that addition of the phrase “claim for personal injury or pro perty damage” was intended to limit the scope of gover nmental indemnification in a way that ignores the original

purpos e of the Act. The Court of Federal Claims reads far too much into that clause; we decline to do so. 2

C O NCLUSION

For the reasons stated above, we reverse the Court of Federal Claims’ dismissal of Indian Harbor’s complaint and remand for proceedings in acco rdance with this opinion.

REVERSED AND REMANDED

2 There is nothing to explain the Conference Co mmittee’s reasoning in adding the clause. Whatever the intent, we read it to limit the type of damages recove r able

— i.e., to exclude hedonic damages or lost profits

— not to impose the type of third party requirements the Court of Federal Claims reads into it.INDIAN HARBOR INSURANCE CO v. US 18

C OSTS

No costs