United States Court of Appeals 

for the Federal Circuit

__________________________ 

ENTERGY NUCLEAR FITZPATRICK, LLC,

ENTERGY NUCLEAR INDIAN POINT 3, LLC,

AND ENTERGY NUCLEAR OPERATIONS, INC.,

Plaintiffs-Appellees,

v.

UNITED STATES,

Defendant-Appellant.

__________________________ 

2012-5059

__________________________ 

Appeal from the United States Court of Federal 

Claims in case no. 03-CV-2627, Judge Edward J. Damich.

___________________________ 

Decided: April 2, 2013 

___________________________ 

JAY E. SILBERG, Pillsbury Winthrop Shaw Pittman, 

LLP, of McLean, Virginia, argued for the plaintiffsappellees. With him on the brief were ALEXANDER D.

TOMASZCZUK and EVAN D. WESSER. Of counsel on the 

brief was L. JAGER SMITH, JR. Jager Smith LLC, of Jackson, Mississippi. 

ANDREW P. AVERBACH, Senior Trial Counsel, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the 
ENTERGY NUCLEAR v. US 2

brief were STUART F. DELERY, Acting Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and HAROLD D.

LESTER, JR., Assistant Director, MARIAN E. SULLIVAN, 

Senior Trial Counsel, LISA L. DONAHUE, and SCOTT 

SLATER, Trial Attorneys. Of counsel on the brief was 

JANE K. TAYLOR, Office of General Counsel, United States 

Department of Energy, of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, LOURIE and REYNA, Circuit 

Judges. 

RADER, Chief Judge. 

This interlocutory appeal is the latest in a line of attempts by the government to raise the “unavoidable 

delays” defense in breach of contract actions stemming 

from its failure to accept Spent Nuclear Fuel (SNF) from 

the nation’s nuclear utilities. In a combination of two 

decisions, the United States Court of Federal Claims 

struck the government’s affirmative defense. Entergy 

Nuclear FitzPatrick, LLC v. United States, 93 Fed. Cl. 

739, 745–46 (2010) (Entergy FitzPatrick I); Entergy Nuclear FitzPatrick, LLC v. United States, 101 Fed. Cl. 464, 

472–74 (2011) (Entergy FitzPatrick II). Because the Court 

of Federal Claims correctly applied the Nebraska Public 

Power rule, this court affirms the decision to strike the 

government’s unavoidable delays defense.

I.

In early 1983, the Nuclear Waste Policy Act (NWPA) 

established a comprehensive scheme to accept and dispose 

of SNF and other high-level radioactive waste (HLW) 

generated from the operation of nuclear power plants. 

See 42 U.S.C. §§ 10101–10270. Addressing the “national 

problem” of storage and disposal of these materials, the 

Act imposed on the government the responsibility to 

provide permanent disposal, while the costs of that dis-
3 ENTERGY NUCLEAR v. US

posal “should be the responsibility of the generators and 

owners of such waste and spent fuel.” Id. § 10131(a). The 

Act also made the utilities responsible to provide and pay 

for SNF storage until the United States Department of 

Energy (DOE) accepts the material “in accordance with 

the provisions of this chapter.” Id. § 10131(a)(5). 

The NWPA authorized the Secretary of Energy to enter into contracts with nuclear utilities for the acceptance, 

transportation, and disposal of SNF in return for payment 

of fees by the utilities. Id. § 10222(a)(1). The Act set 

specific requirements for these contracts, including when 

DOE was to start accepting the SNF and other radioactive waste. Section 302(a)(5) of the NWPA requires:

Contracts entered into under this section shall provide that— 

(A) following commencement of operation of a repository, the Secretary shall take title to the highlevel radioactive waste or spent nuclear fuel involved as expeditiously as practicable upon the 

request of the generator or owner of such waste or 

spent fuel; and

(B) in return for the payment of fees established 

by this section, the Secretary, beginning not later 

than January 31, 1998, will dispose of the highlevel radioactive waste or spent nuclear fuel involved as provided in this subchapter.

42 U.S.C. § 10222(a)(5) (emphasis added). 

Later, DOE promulgated a regulation containing a 

contract, known as the Standard Contract. Standard 

Contract for Disposal of Spent Nuclear Fuel and/or HighLevel Radioactive Waste, 48 Fed. Reg. 16,590 (Apr. 18, 

1983) (codified at 10 C.F.R. § 961.11). In compliance with 

the statute, the Standard Contract states that DOE will 

begin acceptance of SNF “not later than January 31, 
ENTERGY NUCLEAR v. US 4

1998,” in exchange for fees paid by the utilities. 10 C.F.R. 

§ 961.11, Art. II.

The NWPA also provided that the Nuclear Regulatory 

Commission “shall not issue or renew a license” to any 

nuclear utility unless the utility has entered into a contract with DOE, or DOE certifies that good faith negotiations to enter such a contact are ongoing. 42 U.S.C. 

§ 10222(b)(1)(A). As this court noted in Maine Yankee, 

the NWPA “effectively made entry into such contracts 

mandatory for the utilities.” Maine Yankee Atomic Power 

Co. v. United States, 225 F.3d 1336, 1337 (Fed. Cir. 2000) 

(Maine Yankee). As a result, the nation’s nuclear utilities—including the Power Authority of the State of New 

York, the original owner of the Entergy nuclear power 

stations at issue here—entered into contracts with DOE 

and began making payments to DOE. 

By 1994, DOE knew it would be unable to accept SNF 

by the January 31, 1998 deadline. It initiated a noticeand-comment proceeding to address its obligations under 

the NWPA. DOE opened the proceeding with its “Notice 

of Inquiry” on “Waste Acceptance Issues” stating its 

“preliminary finding” that DOE had “no statutory obligation to accept [SNF] beginning in 1998 in the absence of 

an operational repository or other facility constructed 

under the [NWPA].” 59 Fed. Reg. 27,007, 27,008 (May 25, 

1994); Indiana Michigan Power Co. v. Dep’t of Energy, 88 

F.3d 1272, 1274 (D.C. Cir. 1996) (Indiana Michigan). In 

April 1995, DOE issued its “Final Interpretation” that 

acknowledged it would not begin accepting SNF by the 

January 31, 1998 deadline and took the position that it 

did not have an unconditional obligation to begin performance on that date. 60 Fed. Reg. 21,793, 21,794–95 (May 

3, 1995). A number of parties petitioned the United 

States Court of Appeals for the District of Columbia for 

review of the Final Interpretation.
5 ENTERGY NUCLEAR v. US

The D.C. Circuit held “that section 302(a)(5)(B) [of the 

NWPA] creates an obligation in DOE, reciprocal to the 

utilities’ obligation to pay, to start disposing of the SNF 

no later than January 31, 1998.” Indiana Michigan, 88 

F.3d at 1277. The D.C. Circuit found that DOE’s statutory obligation to meet the 1998 deadline was “without 

qualification or condition.” Id. at 1276; Northern States 

Power Co. v. Dep’t of Energy, 128 F.3d 754, 757 (D.C. Cir. 

1997) (Northern States). Contrary to that ruling, and 

without seeking rehearing or further review by the Supreme Court, DOE informed the utilities that it would not 

begin accepting nuclear waste by the 1998 statutory 

deadline. Northern States, 128 F.3d at 757. The utilities 

returned to the D.C. Circuit seeking a writ of mandamus 

compelling DOE to begin accepting SNF on time. While 

that case was pending, DOE asserted that under the 

Standard Contract’s “Unavoidable Delays” clause, it was 

not obligated to provide a financial remedy for the delay 

in performance. Id. Article IX of the Standard Contract 

contains provisions for “Delays.” Section A covers “Unavoidable Delays by Purchaser or DOE” and precludes a 

party’s liability for “damages caused by failure to perform 

its obligations hereunder, if such failure arises out of 

causes beyond the control and without the fault or negligence of the party failing to perform.” 10 C.F.R. § 961.11, 

Art. IX(A). 

The D.C. Circuit denied the specific writ requested by 

the utilities. While acknowledging that DOE’s approach 

toward contractual remedies was inconsistent with the 

NWPA and the court’s holding in Indiana Michigan, the 

D.C. Circuit found that the Standard Contract “provides a 

potentially adequate remedy if DOE fails to fulfill its 

obligations by the deadline.” Northern States, 128 F.3d at 

756. In doing so, the D.C. Circuit rejected DOE’s argument that it was not obligated to accept nuclear waste 

because its failure was “unavoidable” within the meaning 
ENTERGY NUCLEAR v. US 6

of the unavoidable delays clause. Id. at 757. Reaffirming 

that “the NWPA imposes an unconditional duty on DOE 

to take the materials by 1998,” the D.C. Circuit 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.” Id. at 756. Accordingly, our sister circuit 

ordered DOE “to proceed with contractual remedies in a 

manner consistent with NWPA’s command that it undertake an unconditional obligation to begin disposal of the 

SNF by January 31, 1998.” Id. at 760. The D.C. Circuit 

also issued a post-judgment order clarifying the scope of 

its Northern States decision. Northern States Power Co. v. 

Dep’t of Energy, No. 97-1064, 1998 WL 276581 (D.C. Cir. 

May 5, 1998). The court explained that it had “barred the 

DOE from interpreting the [Standard] Contract as imposing only a contingent disposal obligation; such an interpretation, we ruled, would place the DOE in violation of 

its statutory duties under the [NWPA], which required it 

to undertake an unconditional obligation.” Id. at *1. 

To date, the utilities continue to make payments totaling hundreds of millions of dollars each year, even 

though DOE has yet to accept any nuclear waste. So far, 

dozens of Standard Contract holders have sued the government in the Court of Federal Claims seeking damages 

for DOE’s delay in accepting SNF. This court has addressed the Standard Contract on numerous occasions 

and held that the government’s failure to begin accepting 

SNF as of January 31, 1998 is a partial breach of the 

contract. See, e.g., Maine Yankee, 225 F.3d at 1342–43.

This court, sitting en banc, addressed the D.C. Circuit’s Indiana Michigan and Northern States decisions in 

2010. Nebraska Public Power Dist. v. United States, 590 

F.3d 1357 (Fed. Cir. 2010) (en banc) (Nebraska Public 

Power). In Nebraska Public Power, the government 
7 ENTERGY NUCLEAR v. US

asserted the unavoidable delays defense against a claim 

for damages resulting from DOE’s failure to accept nuclear waste as of January 31, 1998. First, this court confirmed the D.C. Circuit’s jurisdiction over the utilities’ 

statutory claim arising under section 302 of the NWPA. 

Id. at 1376. The D.C. Circuit’s mandamus order focused 

on statutory interpretation and did not impermissibly 

trespass upon the jurisdiction of the Court of Federal 

Claims to determine the parties’ contractual rights. Id. 

Accordingly, the D.C. Circuit’s mandamus order was 

afforded res judicata effect. Id. 

The Nebraska Public Power opinion characterized the 

D.C. Circuit’s opinion as precluding the government’s use 

of the unavoidable delays defense to nullify its statutory 

obligations. This court explained that as “a matter of 

statutory construction, the D.C. Circuit interpreted DOE’s 

obligation to begin accepting nuclear waste in 1998 as 

unconditional.” Id. at 1375. Thus, the D.C. Circuit’s 

holding that “the government’s failure to have a repository ready by January 31, 1998, could not be excused as 

unavoidable delay,” was based on its interpretation of the 

NWPA. Id.

In 2003, Entergy Nuclear FitzPatrick, LLC, Entergy 

Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. (collectively Entergy) sued the United States 

asserting that DOE partially breached contracts through 

its failure to accept SNF beginning on January 31, 1998. 

Entergy FitzPatrick I, 93 Fed. Cl. at 741. Similar to other 

utilities, Entergy claimed the government’s breach caused 

it to “incur substantial additional costs” associated with 

their SNF storage. Id. After a five year stay, the government answered Entergy’s complaint with an affirmative defense based upon the unavoidable delays clause in 

the Standard Contract. 
ENTERGY NUCLEAR v. US 8

The Court of Federal Claims granted Entergy’s motion to strike this defense based on the writ of mandamus 

issued by the D.C. Circuit in Northern States, which this 

court previously held was entitled to res judicata effect in 

Nebraska Public Power. Id. at 745–46. The Energy 

Department sought reconsideration based on this court’s 

later decision in Southern Nuclear Operating Co. v. United States, 637 F.3d 1297 (Fed. Cir. 2011) (Southern Nuclear). According to the government, Southern Nuclear

held that the Northern States writ of mandamus does not 

bar assertion of the unavoidable delays defense to limit 

damages in the Court of Federal Claims. Entergy FitzPatrick II, 101 Fed. Cl. at 469. The trial court denied the 

motion for reconsideration and sua sponte certified the 

question for interlocutory appeal pursuant to 28 U.S.C. § 

1292(d)(2). Id. at 472–74. This court granted the petition 

for interlocutory appeal. Entergy Nuclear Fitzpatrick, 

LLC v. United States, 449 F. App’x 947 (Fed. Cir. 2012). 

II.

This court reviews legal conclusions of the Court of 

Federal Claims, including contract interpretation, de 

novo. Yankee Atomic Elec. Co. v. United States, 536 F.3d 

1268, 1272 (Fed. Cir. 2008). This court reviews the trial 

court’s decision on reconsideration for an abuse of discretion. Yuba Natural Resources, Inc. v. United States, 904 

F.2d 1577, 1583 (Fed. Cir. 1990).

The government’s appeal challenges the scope of this 

court’s en banc Nebraska Public Power decision. The 

government avers 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. 

It argues, based on this court’s later Southern Nuclear

panel decision, that Nebraska Public Power only prevents 

the unavoidable delays clause as a defense to liability. 
9 ENTERGY NUCLEAR v. US

In Southern Nuclear, this court affirmed a Court of 

Federal Claims’ holding that the government waived the 

unavoidable delays defense by raising it post-trial. 

Southern Nuclear, 637 F.3d at 1306. In Southern Nuclear, the government argued that it reasonably believed it 

was barred by the Northern States mandamus order from 

raising the unavoidable delays defense, thus it could not 

have voluntarily or knowingly waived the defense at trial. 

Id. at 1305. This court found that argument unpersuasive 

and stated:

In our en banc decision in Nebraska Public Power, 

we did not suggest that the District of Columbia 

Circuit’s decisions in any way foreclosed arguing 

in favor of the defense in the Claims Court. Indeed, we considered the government's argument 

and held that the District of Columbia Circuit had 

jurisdiction to enter the mandamus order and that 

its decision in Northern States was entitled to res 

judicata effect on the issue of liability but that it 

did not “direct the implementation of any remedy.”

Id. at 1306 (citation omitted). Yet, on the merits, the 

panel concluded that the argument was waived:

Because the government failed to raise the unavoidable delays clause here and because this failure was not compelled by the District of Columbia 

Circuit’s mandamus in Northern States, it has 

waived the defense. We need not reach the question posed by the Nebraska Public Power concurrence as to whether the ‘unavoidable delays’ 

clause could provide a defense to expectancy damages. 

Id. at 1306. 
ENTERGY NUCLEAR v. US 10

In this case, the government argues that Southern 

Nuclear interpreted Nebraska Public Power and “expressly held that, notwithstanding the mandamus order issued 

by the [D.C. Circuit] in Northern States, the United States 

has the right to invoke the [unavoidable delays] clause as 

a defense to damages.” Appellant’s Br. at 14.

The government’s argument is an extension of the 

Nebraska Public Power concurrence, which responded to 

the lone dissent in that opinion. The Nebraska Public 

Power dissent interpreted “the order in mandamus [to be] 

clearly directed to the interpretation of the Standard 

Contract (not the NWPA) and is thus not only outside the 

jurisdiction of the D.C. Circuit, but also infringes upon the 

Court of Federal Claims’s exclusive Tucker Act jurisdiction over the administration of contract disputes.” Nebraska Public Power, 590 F.3d at 1377 (Gajarsa, J., 

dissenting). The dissent further elaborated that “the 

majority cannot avoid the obvious legal conclusion that 

this affects the damages imposed upon the United 

States.” Id. at 1381. Put another way, “the D.C. Circuit 

ordered what is, in effect, compensatory relief. . . . The 

D.C. Circuit exceeded its jurisdiction in [precluding the 

DOE from relying on the unavoidable delays clause] and 

by its writ thus obligated the DOE to pay compensatory 

damages in a subsequent breach of contract action.” Id.

at 1384. Nonetheless, the remainder of the en banc 

court upheld the mandamus order based on the D.C. 

Circuit’s authority to construe the NWPA and to direct 

DOE to comply with its statutory obligations. Id. at 1376.

In response, the Nebraska Public Power concurrence, 

without citing to specific language in either the majority 

opinion or Northern States, contended that these cases do 

not “order[] the government to pay money damages (expectancy damages) for breach of the agreement.” Id. at 

1377 (Dyk, J., concurring). “Although I read the majority 

as establishing government liability, it remains open for 
11 ENTERGY NUCLEAR v. US

the government to argue that the Unavoidable Delays 

clause bars a damages award (as opposed to some other 

contractual remedy such as restitution).” Id. 

In contrast, the Nebraska Public Power majority held 

that the D.C. Circuit’s “order did not address any issue of 

contract breach, direct the implementation of any remedy, 

or construe any contract defense, except to the extent that 

the proposed interpretation of the contract would conflict 

with the statutory directive in section 302(a)(5).” Id. at 

1376. That statutory directive is the performance commencement date of “not later than January 31, 1998.” See

42 U.S.C. § 10222 (a)(5)(B). “Beyond that implementation 

of its statutory ruling, the D.C. Circuit properly left all 

issues of contract breach, enforcement, and remedy to be 

determined in the litigation before the Court of Federal 

Claims.” Nebraska Public Power, 590 F.3d at 1376. 

In this case, the trial court recognized in its motion 

for reconsideration that “[i]mplicit in the [Southern Nuclear] panel’s holding is that the unavoidable delays 

defense could have been raised despite the mandamus 

(but it wasn’t, so therefore it was waived).” Entergy 

FitzPatrick II, 101 Fed. Cl. at 469. Nonetheless, the trial 

court concluded that under the controlling Nebraska 

Public Power en banc decision, the government may not 

invoke an unavoidable delays defense.

The government differentiates between asserting the 

unavoidable delays clause as a defense to liability and 

asserting this clause as a defense to damages. It does not 

dispute that Nebraska Public Power and the Northern 

States mandamus preclude the clause as a defense to 

liability for failing to begin accepting SNF on January 31, 

1998. Instead, the government contends it is not precluded from asserting the clause as a defense to monetary 

damages arising from that breach. Appellant’s Br. at 1. 
ENTERGY NUCLEAR v. US 12

In supplemental briefing before the trial court in this 

case, the government outlined its intended use of the 

defense. It indicated that “the United States does not 

propose to use the unavoidable delays defense as a getout-of-jail-free card” concerning liability. Entergy FitzPatrick II, 101 Fed. Cl. at 465. Rather, the government 

intends to use the defense to “circumscribe[ ] the amount 

of expectation damages.” Id. In particular, it argues that 

costs incurred by Entergy from the state of Nevada’s 

efforts to prevent licensing of a repository are covered by 

the unavoidable delays clause. “[Entergy’s] recovery 

should be reduced only by the amount that [Entergy] 

would have expended had the United States accepted 

SNF on a schedule delayed only by the length of time 

attributable to Nevada’s dilatory conduct.” Id. The government specifically asserts, “the unavoidable delays that 

DOE has encountered as a result of the [sic] Nevada’s 

conduct would have delayed the commencement of SNF 

acceptance by at least 31 months, or from January 30, 

1998 through at least August 2000.” Id. (emphasis in 

original). For that reason, the government contends that 

Entergy’s damages for SNF storage resulting from the 

government’s delay in performance “did not commence 

until September 2000—the earliest that performance 

could have begun given the Unavoidable Delays that DOE 

encountered.” Id.

The government’s attempt to separate liability and 

damages highlights the reason that Northern States and 

Nebraska Public Power clearly control the issue. By the 

government’s admission, the functional result of the 

unavoidable delays clause releases the government from 

its statutory burden of performance by January 1998. 

This it may not do.

In Nebraska Public Power, this court held that the 

D.C. Circuit had jurisdiction to review the government’s 

compliance with the NWPA and that the Northern States
13 ENTERGY NUCLEAR v. US

writ of mandamus should be afforded res judicata effect. 

Nebraska Public Power, 590 F.3d at 1376. In Northern 

States, the D.C. Circuit ordered: 

DOE to proceed with contractual remedies in a 

manner consistent with NWPA’s command that it 

undertake an unconditional obligation to begin 

disposal of the SNF by January 31, 1998. More 

specifically, we preclude DOE from concluding 

that its delay is unavoidable on the ground that it 

has not yet prepared a permanent repository or 

that it has no authority to provide storage in the 

interim. 

Northern States, 128 F.3d at 760 (emphasis added). For 

the second time, the D.C. Circuit expressly rejected DOE’s 

argument that “it does not have responsibility for the 

costs resulting from its failure to [begin accepting SNF by 

January 31, 1998] because it does not have an operational 

repository or other facility.” Id. The Northern States

court further elaborated “DOE cannot now render its 

obligation contingent, and free itself of the costs caused by 

its delay, by advancing the same failed position that we 

rejected [in Indiana Michigan].” Id. (emphasis added). 

The D.C. Circuit’s mandamus order was unmistakably 

directed at both liability for and damages resulting from 

DOE’s failure to meet its statutory obligation. The mandamus order “preclude[d] 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.” 

Id. at 756.

This court addressed the scope of the Northern States

mandamus order in Nebraska Public Power. This court 

explained that “based on its interpretation of the NWPA, 

the D.C. Circuit held that the government’s failure to 

have a repository ready by January 31, 1998, could not be 
ENTERGY NUCLEAR v. US 14

excused as unavoidable delay.” Nebraska Public Power, 

590 F.3d at 1383 (emphasis added). This court further 

held, “[t]he D.C. Circuit’s order prohibited the government 

from using contract interpretation as a means of avoiding 

its statutory obligations under section 302, which the D.C. 

Circuit was authorized to do as a means of enforcing the 

statutory claim that was brought before it in the Indiana 

Michigan case.” Id. at 1365. As this court en banc elaborated, the D.C. Circuit issued its mandamus order to “bar 

DOE from doing under the rubric of contract interpretation what section 302(a)(5)(B) prohibited as a matter of 

statutory compulsion.” Id. at 1372. Moreover, the en 

banc court expressly acknowledged that, although the 

D.C. Circuit’s writ was not itself “an award of damages,” 

the relief granted “could affect subsequent contract litigation that in turn could result in an award for damages,” 

id. at 1371 n.7, and that “the D.C. Circuit’s remedial order 

would affect later litigation over contract-based rights.” 

Id. at 1376. The mandamus order’s application to damages was thus contemplated in this court’s Nebraska Public 

Power decision.

In sum, Nebraska Public Power’s holding that the 

D.C. Circuit’s mandamus order is entitled to res judicata 

effect precludes use of the unavoidable delays clause as a 

defense to both liability and damages resulting DOE’s 

failure to meet the January 1998 deadline. Even if there 

were a contrary “implicit” finding in Southern Nuclear, 

the en banc Nebraska Public Power decision controls. See

Texas Am. Oil Corp. v. Dep’t of Energy, 44 F.3d 1557, 1561 

(Fed. Cir. 1995) (en banc). The government had an unconditional statutory obligation to accept SNF beginning 

by January 31, 1998. 42 USC § 10222 (a)(5)(B); Nebraska 

Public Power, 590 F.3d at 1375–76; Northern States, 128 

F.3d at 760.

Additionally, the government’s acceptance of liability 

for breaching its statutory obligation to accept SNF is 
15 ENTERGY NUCLEAR v. US

inconsistent with its contention that the unavoidable 

delays clause allows a reduction in damages resulting 

from its failure to begin acceptance of SNF in January 

1998. This court has expressly established that breach of 

the Standard Contract began on January 31, 1998. Maine 

Yankee, 225 F.3d at 1341–42. In contrast, as the Court of 

Federal Claims has noted, if performance is excused 

under the unavoidable delays clause until a date after 

January 1998, then there is no basis for determining 

liability for partial breach beginning January 31, 1998. 

See Entergy FitzPatrick II, 101 Fed. Cl. at 471–472; see 

also Portland Gen. Elec. Co. v. United States, 100 Fed. Cl. 

46, 51 (2011) (“The two concepts are mutually exclusive; if 

damages do not accrue, it is because performance is 

excused, i.e., there is no breach.”).

III.

For the forgoing reasons, the trial court’s denial of the 

motion to reconsider is affirmed. 

AFFIRMED