Spent Nuclear Fuel;

Reconsideration;

RCFC 52(b); RCFC

59; Damages;

Causation 

In the United States Court of Federal Claims

No. 03-2627C

(Filed: March 17, 2016)

NOT FOR PUBLICATION

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ENTERGY NUCLEAR FITZPATRICK, LLC,

ENTERGY NUCLEAR INDIAN POINT 3, LLC, 

and ENTERGY NUCLEAR OPERATIONS, INC., 

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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ORDER

On January 8, 2016, pursuant to Rules 52(b) and 59 of this court’s rules

(“RCFC”), plaintiffs filed a motion for reconsideration of our bench ruling,

which was confirmed in a written order for judgment on December 15, 2015. 

We held that the United States is liable for its breach of the Standard Contract

for Disposal of Spent Nuclear Fuel and entered final judgment for plaintiffs in

the amount of $80,876,013. As part of that decision, we denied plaintiffs’

claim for the security costs for manning two additional Bullet Resistant

Enclosures (“BREs”) at Indian Point Energy Center Unit 3 (“Indian Point 3”). 

The motion for reconsideration is fully briefed, and oral argument was held on

March 1, 2016.

In our bench ruling, we found that the estimated security costs at Indian

Point 3 were not recoverable: 

A. In principal, once again, I can accept the idea that having

two more BREs to man should lead to higher staffing costs, but

plaintiffs’ calculation of additional costs based on full-time

equivalents did not establish an incremental increase in actual

security staffing and thus actual costs incurred due to the breach.

It was simply assumed; B. There was no evidence of either an
uptick in security staffing when the two addition BREs went

online or evidence of actual 24/7 staffing of those posts; C. The

testimony of Mr. Gagnon that this lack of an uptick in staffing

was due to the natural ebb and flow of security staffing at such

a large facility does not explain the lack of proof, and plaintiffs

have not claimed lost opportunity costs. The claim fails for lack

of proof.

Entergy Nuclear Fitzpatrick, LLC v. United States, 2015 U.S. Claims LEXIS

1649, *9 (Fed. Cl. Dec. 15, 2015). 

In their motion for reconsideration, plaintiffs argue that we applied the

wrong legal standard in considering their claim for the additional security

expenses at Indian Point 3. Specifically, plaintiffs contend that whether the

security staffing costs were incremental over costs absent the breach is not the

relevant legal inquiry for determining the recoverability of internal labor costs

that were deployed to mitigate the government’s breach. Rather, the correct

standard is whether plaintiffs were deprived of the ability to use those

personnel who were undeniably required to staff the BREs in lieu of

performing other activities. As the Federal Circuit expressed in Energy

Northwest v. United States, 641 F.3d 1300 (Fed. Cir. 2011), recovery of

mitigation expenses should not turn on whether internal or external labor is

used to perform the mitigation task or whether the labor is incremental or not; 

the appropriate test is simply whether “the awarded costs were actually caused

by the breach.” Id. at 1309. Plaintiffs also argue that the testimony of the

security manager of Indian Point 3, Mr. Gagnon, is sufficient evidence of

actual 24/7 staffing of two additional BREs.

“The decision whether to grant reconsideration lies largely within the

discretion of the [trial] court.” Pacific Gas & Elec. Co. v. United States, 114

Fed. Cl. 146, 149 (Fed. Cl. 2013) (quoting Yuba Natural Res., Inc. v. United

States, 904 F.2d 1577, 1583 (Fed. Cir. 1990)). RCFC 52(b) provides that “[o]n

a party’s motion . . . the court may amend its findings” and RCFC 59(a)(1)

provides that “[a] . . . reconsideration may be granted . . . for any of the reasons

established by the rules of common law.” Pacific Gas & Elec. Co. v. United

States, 74 Fed. Cl. 779 (Fed. Cl. 2006). “The three primary grounds that

justify reconsideration are: ‘(1) an intervening change in the controlling law;

(2) the availability of new evidence; and (3) the need to correct clear error or

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prevent manifest injustice.’” Delaware Valley Floral Group. Inc. v. Shaw Rose

Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010) (quoting Degirmenci v.

Sapphire-Fort Lauderdale, LLLP, 642 F. Supp. 2d 1344, 1353 (S.D. Fla.

2009)). Such a motion is not an opportunity, however, for a disappointed

litigant to reargue its case. See Cane Tenn., Inc. v. United States, 62 Fed. Cl.

703, 705 (2004).

Our evaluation of the claim left room for either of two means of proof:

direct evidence of labor costs actually expended in association with manning

the BREs, irrespective of whether it added to the total amount of labor

expended on security (“evidence of actual 24/7 staffing of those posts”), or

indirect proof of actual labor expended, which could be inferred in part from

an overall increase in labor costs or staffing. 

The problem for plaintiffs was that they had no direct proof of costs

associated with manning the two new BREs. Such records were destroyed.1

What plaintiffs had to resort to was indirect proof, which was, of course,

permissible. Plaintiffs’ logic chain went something like this: two additional

BREs were built because of the need to provide additional security for the new

dry storage facility; Mr. Gagnon testified that those posts needed to be manned

24/7; he provided excerpts from post assignments after June 5, 2011,

indicating that guards were scheduled for those posts; Mr. Gagnon then

estimated how many additional guards would have been required to man those

posts (ten or more); and Mr. Metcalf estimated how much their salaries would

have been, based on a median of security staff salaries, less an estimate as to

wasted time. In other words, plaintiffs cobbled together a number of

estimates as indirect proof of what it actually cost to staff the additional BREs. 

They chose to complete their proof with the contention that the guards were in

addition to existing staffing.

What troubled the court at trial, in addition to the inherent imprecision

of the estimates of time and wages, was that the assertion of additional staff

was merely an assumption, and one which turned out to be counter to the

1A litigation hold was not placed until 2014, and Entergy had a three year

document retention policy for such records. Thus no staff records exist prior

to three years before the hold went in to effect.

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actual evidence. The documentary evidence showed no increase in staffing

after the BREs went on line. The conclusion that plaintiffs wanted to use as

support for their proof that they actually incurred costs was at odds with the

evidence. This prompted the comment in the bench ruling that “the plaintiffs’

calculation of additional costs based on full-time equivalents did not establish

an incremental increase in actual security staff, and thus, actual costs incurred. 

It was simply assumed.” Tr. 13 (Oct. 28, 2015). Consequently, in the absence

of direct evidence of costs associated with the additional BREs, whether or not

incremental to overall costs, what the court was looking for was proof of an

overall increase in manning costs, because that was what the plaintiffs asserted

happened. If there had been such evidence, the court might have accepted the

indirect proof in order to establish both a causal link between the breach and

costs associated with the new BREs and as a means of itemizing those costs.2

Although counsel for plaintiffs suggested at oral argument that what

they were seeking with respect to the two new BREs amounted to a claim for

lost opportunity costs, we think the record is clear that plaintiffs’ only claim

at trial was for the incremental increase in direct labor charges associated with

manning the two additional security posts.

3 Their witnesses repeatedly

contended that the costs for staffing the BREs were in addition to pre-breach

staffing costs. Plaintiffs’ position throughout was that the overall effort

increased. On that argument, the proof failed; the alternative explanation was

never attempted.4

2The calculation of those costs using the proffered method of estimation may

not have been reasonably certain, but we did not reach that issue in our ruling

because we found the claim failed for lack of proof of causation.

3

In their pretrial brief, for example, plaintiffs have a category “4. Additional

Security Costs,” which they explain in the text as the “increased security cost

to protect the Indian Point ISFSI. The portion of the additional security costs

allocated to Indian Point 3 totals approximately $2,539,000.” Pls.’ Pretrial

Contentions of Fact and Law 18.

4That is not to say that a claim for lost opportunitywould have been successful. 

It likely would have failed for the same reason: lack of proof of actual costs.

4
This case is unlike Sacramento Municipal Utility Distrist v. United

States, 293 Fed. Appx. 766 (Fed. Cir. 2008), where the Federal Circuit 

reversed the trial court’s decision denying certain breach-related internal labor

expenses. The utility in that case presented evidence “detailing the percentage

of hours each [] employee charged to [the] ‘dual-purpose’ dry storage project

relative to the total hours that each employee worked for [the plaintiff].” Id.

at 773. The trial court required the utility to also have put on evidence of

what it would have done with those employees absent the breach. The circuit

rejected that additional requirement and held that plaintiff needed only to

prove that it used “its own employees in its mitigation efforts, and the number

of hours those employees spent on mitigation related projects.” Id. The

plaintiff utilized a number of work orders against which it charged hours for

the dry storage project, i.e., it had actual evidence of costs incurred. 70 Fed.

Cl. 332, 366 (2006); see also Wis. Elec. Power Co. v. United States, 90 Fed.

Cl. 714, 788 (2009) (we found that plaintiff met its burden of establishing

internal labor costs to a reasonable certainty because those costs were subject

to lay and expert testimony at trial and were adequately supported by books

and records, such as “time sheets reviewed and signed off by a supervisor,”

internal accounting and payroll records); Sys. Fuels, Inc. v. United States, 79

Fed. Cl. 37, 66-67 (2007) (awarding internal labor costs because they were

supported by contemporaneous records of hours expended on breach-related

activities).

Plaintiffs argue that Mr. Gagnon’s testimony is sufficient evidence of

actual 24/7 staffing at the two additional BREs, but that is simply a

disagreement with our weighing of the evidence and not a reason to grant a

motion for reconsideration. When the courts have awarded internal labor

costs, they have done so based on a record containing actual evidence of the

hours worked, not post hoc estimates created solely for trial. Because there is

no apparent or obvious error of law or a mistake of fact, we deny plaintiffs’

motion for reconsideration.

s/Eric G. Bruggink

ERIC G. BRUGGINK

Judge

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