   United States Court of Appeals for the Federal Circuit




                                           04-5122


                         INDIANA MICHIGAN POWER COMPANY,

                                                       Plaintiff-Appellant,


                                              v.


                                     UNITED STATES,

                                                       Defendant-Appellee.



        Alexander D. Tomaszczuk, Shaw Pittman LLP, of McLean, Virginia, argued for
plaintiff-appellant. With him on the brief were Jay E. Silberg, Devon E. Hewitt, Michael G.
Lepre, Daniel S. Herzfeld, and Jack Y. Chu, of Washington, DC.

       Harold D. Lester, Jr., Assistant Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-appellee.
With him on the brief were Peter D. Keisler, Assistant Attorney General and David M.
Cohen, Director. Of counsel on the brief were John C. Ekman, Heide R. Herrmann, and
Marian E. Sullivan, Trial Attorneys. Also, of counsel was Scott Damelin. Of counsel on the
brief was Jane K. Taylor, Attorney, Office of General Counsel, United States Department of
Energy, of Washington, DC.

       Jerry Stouck, Spriggs & Hollingsworth, of Washington, DC, for amici curiae Yankee
Atomic Electric Company, et al. Richard W. Oehler, Perkins Coie LLP, of Seattle,
Washington, for amicus curiae Wisconsin Electric Power Company. With him on the brief
were Martin P. Willard and Donald J. Carney, of Washington, DC; Ronald A. Schechter,
Arnold & Porter LLP, of Washington, DC, for amici curiae Southern Nuclear Operating
Company, et al. With him on the brief was Robert L. Shapiro; Howard N. Cayne, Arnold &
Porter LLP, of Washington, DC, for amicus curiae Sacramento Municipal Utility District.
With him on the brief was Timothy R. Macdonald; and Norman M. Hirsch, Jenner & Block
LLP, of Chicago, Illinois, for amici curiae Energy Northwest, et al. With him on the brief was
David Jimenez-Ekman.
                                          -2-

     Joseph M. Perillo, Fordham Law School, of New York, New York, for amici curiae
The Detroit Edison Company, et al.

Appealed from: United States Court of Federal Claims

Judge Robert H. Hodges, Jr.
 United States Court of Appeals for the Federal Circuit


                                        04-5122



                      INDIANA MICHIGAN POWER COMPANY,

                                                       Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                       Defendant-Appellee.


                           __________________________

                           DECIDED: September 9, 2005
                           __________________________


Before MAYER, LOURIE, and BRYSON, Circuit Judges.

MAYER, Circuit Judge.

      Indiana Michigan Power Co. (“Indiana Michigan”) appeals the judgment of the

United States Court of Federal Claims, Indiana Michigan Power Co. v. United States, 60

Fed. Cl. 639 (2004), dismissing its damages claims against the United States

Department of Energy (“DOE” or “government”) for breach of contract. We affirm.

                                      Background

      This action is one of several filed by the nation’s nuclear electric utilities in the

Court of Federal Claims seeking damages arising from the government’s failure to

accept and dispose of spent nuclear fuel (“SNF”). The general factual background of

the contracts and circumstances surrounding SNF cases have been well outlined in the
trial court’s opinion, as well as in opinions by this and other courts. See Me. Yankee

Atomic Power Co. v. United States, 225 F.3d 1336, 1337-40 (Fed. Cir. 2000); Ind. Mich.

Power Co. v. Dep’t of Energy, 88 F.3d 1272, 1273-74 (D.C. Cir. 1996). Therefore, only

the facts necessary for an understanding of the issues that give rise to this appeal are

discussed.

       Under the Nuclear Waste Policy Act (“NWPA”), Pub. L. No. 97-425, Title III,

§ 302, 96 Stat. 2257 (Jan. 7, 1983) (codified at 42 U.S.C. § 10222 (2000)), Congress

directed DOE to “enter into [Standard Contracts with all entities that] generate[] or hold[]

title to high-level radioactive waste, or spent nuclear fuel, of domestic origin for the

acceptance of title, subsequent transportation, and disposal of such waste or spent fuel”

in consideration for initial and recurring annual fees, with removal to begin no later than

January 31, 1998. Seeking to avoid the inefficient and potentially unsafe prospect of

allowing individual utilities to recycle or dispose of their own SNF, Congress enacted the

NWPA to “establish the Federal responsibility, and a definite Federal policy, for the

disposal of” spent nuclear fuel. Roedler v. Dep’t of Energy, 255 F.3d 1347, 1350 (Fed.

Cir. 2001) (quoting 42 U.S.C. § 10131(b)(2) (2000)).         Nuclear plant operators and

utilities were mandated by Congress to enter into Standard Contracts, the terms of

which are presented at 10 C.F.R. § 961.11, as a prerequisite to obtaining renewal of

their operating licenses. 42 U.S.C. § 10222(a)(1); Maine Yankee, 225 F.3d at 1337

(“The [NWPA] effectively made entry into such contracts mandatory for the utilities[.]”).

       On June 14, 1983, Indiana Michigan entered into a Standard Contract with DOE,

under which removal of SNF from its Bridgman, Michigan, nuclear plant was to begin in




04-5122                                      2
2001.1 In 1994, DOE announced that it would not begin SNF collection until 2010

because its planned storage repository would not be ready until then. Notice of Inquiry,

Office of Civilian Radioactive Waste Management: Waste Acceptance Issues, 59 Fed.

Reg. 27,007-27,008 (May 25, 1994). One year later, DOE asserted that it had neither a

statutory nor contractual obligation to accept the utilities’ nuclear waste in the absence

of such repository or temporary storage facility. Maine Yankee, 225 F.3d at 1338 (citing

Final Interpretation of Nuclear Waste Acceptance, 50 Fed. Reg. 21,793 (1995)).

      On June 8, 1998, the utility sued the government for partial breach of the

Standard Contract in the Court of Federal Claims, asking damages for: pre-breach

mitigation costs, totaling $23.9 million, incurred for its 1989 through 1994 rerack2 and

expansion of its existing SNF pool in 1993 and 1994; and future damages, totaling

$83.8 million, for forecasted investment in the construction of a private storage facility

for housing SNF not collected by DOE by the contracted-for collection start date. In

light of this court’s decisions holding DOE liable for breach of contract in SNF cases in

Maine Yankee, 225 F.3d at 1342, and Northern States Power Co. v. United States, 224

F.3d 1361, 1367 (Fed. Cir. 2000), the trial court entered judgment for Indiana Michigan

on the issue of liability on January 17, 2003. Ind. Mich. Power Co. v. United States, No.

98-486C (Fed. Cl. Jan. 17, 2003).        The trial court subsequently denied Indiana

Michigan’s claimed damages, holding that, because Indiana Michigan claimed partial

      1
            This three-year lag in performance for Indiana Michigan was established
by the Standard Contract’s delivery queue, which gave priority for collection to older
SNF lots owned by other nuclear utilities.
      2
            A rerack consists of removing existing fuel racks from the reactor wet
storage pool and replacing them in a tighter formation so the same pool can
accommodate more rods.



04-5122                                     3
versus total breach, recovery for pre-breach mitigation costs and present recovery for

future damages is precluded.      Indiana Michigan appeals, and we have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(3).

                                        Discussion

       We review the Court of Federal Claims’s decision de novo for errors of law and

for clear error on findings of fact. See Glendale Fed. Bank, FSB v. United States, 239

F.3d 1374, 1379 (Fed. Cir. 2001). “A finding may be held clearly erroneous when . . .

the appellate court is left with a ‘definite and firm conviction that a mistake has been

committed.’”. In re Mark Indus., 751 F.2d 1219, 1222-23 (Fed. Cir. 1984) (citations

omitted).

       The remedy for breach of contract is damages sufficient to place the injured party

in as good a position as it would have been had the breaching party fully performed.

San Carlos Irrigation & Drainage Dist. v. United States, 111 F.3d 1557, 1562 (Fed. Cir.

1997). “[T]he general principle is that all losses, however described, are recoverable.”

Restatement (Second) of Contracts § 347 cmt. c (1981). Damages for a breach of

contract are recoverable where: (1) the damages were reasonably foreseeable by the

breaching party at the time of contracting; (2) the breach is a substantial causal factor in

the damages; and (3) the damages are shown with reasonable certainty.               Energy

Capital Corp. v. United States, 302 F.3d 1314, 1320 (Fed. Cir. 2002). While the amount

of damages need not be “ascertainable with absolute exactness or mathematical

precision[,]” recovery for speculative damages is precluded. San Carlos Irrigation &

Drainage Dist., 111 F.3d at 1563 (citation omitted).




04-5122                                      4
                                                  I.

       Indiana Michigan argues that its rerack and investment in the temporary holding

facility were done to mitigate the government’s partial breach. The government argues

that the only way Indiana Michigan could recover the costs for its pre-breach activities

would be under the doctrine of anticipatory repudiation, a claim it avers Indiana

Michigan has waived. Alternatively, it simply argues that the trial court applied the

correct rule of law when it announced a per se ban on recovery of pre-breach mitigation

damages for partial breach claims.

                                             A.

       We agree with the trial court that Indiana Michigan is not here alleging

anticipatory repudiation of the entire contract, but bases its claim on partial breach.

Insofar as the government raises its anticipatory breach theory in support of the trial

court’s finding that Indiana Michigan is not entitled to recovery,3 its argument fails. First,

neither the trial record, see Indiana Michigan, 60 Fed. Cl. at 648 n.21 (“[Appellant] did

not claim anticipatory breach, despite frequent discussions on the issue during trial.”),

nor Indiana Michigan’s briefs contain a claim for a total anticipatory breach. Second,

contrary to the government’s assertion, the nature of Indiana Michigan’s action does not

lend itself to the moniker of anticipatory repudiation. An anticipatory repudiation is a

“renunciation of a contractual duty before the time fixed in the contract for . . .

       3
              In offering its anticipatory breach theory, the government directly
contradicts the trial court’s finding that this theory does not apply here. But this is
permissible even though it did not cross-appeal. See El Paso Natural Gas Co. v.
Neztsosie, 526 U.S. 473, 479 (1999) (“Absent a cross-appeal, an appellee may urge in
support of a decree any matter appearing in the record, although his argument may
involve an attack upon the reasoning of the lower court, but may not attack the decree
with a view either to enlarging his own rights thereunder or of lessening the rights of his
adversary.” (internal quotation and citation omitted)).


04-5122                                       5
performance[.]”   Franconia Assocs. v. United States, 536 U.S. 129, 143 (2002)

(emphasis and alteration in original) (internal quotation and citation omitted). For an

aggrieved party to recover damages for an anticipatory repudiation, it must elect to treat

the repudiation as a total breach. See id. On the other hand, “[i]f the injured party

elects to or is required to await the balance of the other party’s performance under the

contract, [its] claim is said instead to be one for damages for partial breach.”

Restatement (Second) of Contracts § 236 cmt. b (1981). A partial breach is “[a] claim

for damages . . . based on only part of the injured party's remaining rights to

performance.” Id. § 236(2).

      Here, Indiana Michigan could not have claimed anticipatory repudiation even if it

wanted to; while the government did indicate that it would not meet the 1998 deadline,

its actions did not portend an absolute refusal to perform the contract. The NWPA itself,

and the Standard Contract’s terms drafted pursuant to it, compelled Indiana Michigan to

bring an action for partial, not total, breach. Had Indiana Michigan brought an action for

total breach, DOE would have been discharged from further responsibility under the

contract, a situation apparently not desired by appellant and foreclosed by statute. The

NWPA directed that DOE and all nuclear utilities enter into Standard Contracts, 42

U.S.C. § 10222(a)(1), and concomitantly conditioned the issuance and renewal of

Nuclear Regulatory Commission operating licenses upon the execution of those

contracts, id. § 10222(b)(1)(A).    Additionally, the NWPA provided that DOE was

exclusively responsible for SNF collection and disposal in the United States, thereby

prohibiting Indiana Michigan or any other nuclear utility from seeking alternative

disposal means.    See 42 U.S.C. § 10131(a)(4), (b)(2); Roedler, 255 F.3d at 1350.




04-5122                                     6
Therefore, Indiana Michigan had no choice but to hold the government to the terms of

the Standard Contract while suing for partial breach.

                                             B.

       While we agree with the trial court that Indiana Michigan’s claim is for damages

for partial breach, we disagree that pre-breach costs are per se unrecoverable. In

finding pre-breach damages unrecoverable, the trial court cited Coughlin v. Blair, 262

P.2d 305, 311 (Cal. 1953), for the proposition that damages for partial breach are

limited to costs incurred from the date of the breach to the time of trial: “If the breach is

partial only, the injured party may recover damages for nonperformance only to the time

of trial[.]” Indiana Michigan, 60 Fed. Cl. at 642 (emphasis added).

       At first blush, this statement parallels the general rule for contract damages: that

breach-of-contract damages are measured from the date of breach. See Alder Terrace,

Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (“Generally, in the case of a

breach of a contract, a cause of action accrues when the breach occurs.” (internal

quotation and citation omitted)); see also 11 Arthur L. Corbin, Corbin on Contracts

§ 1005 (Interim ed. 1993) (“[C]ompensation for the plaintiff’s losses is to be made with

reference to the conditions existing at the time when performance is due and the

contract is broken.”). Holding pre-breach damages unrecoverable, or that pre-breach

damages are recoverable only for anticipatory repudiation leading to a total breach,

would, however, compromise a party’s obligation to mitigate damages. The general rule

must be reconciled with a party’s obligation to mitigate damages which befall it during

the periods both antedating and postdating the breach.          “[A] party cannot recover

damages for loss that he could have avoided by reasonable efforts.”            Robinson v.




04-5122                                      7
United States, 305 F.3d 1330, 1333 (Fed. Cir. 2002) (quoting Restatement (Second)

Contracts § 350 cmt. b (1981)) (emphasis in original). Mitigation is appropriate where a

reasonable person, in light of the known facts and circumstances, would have taken

steps to avoid damage. See Robinson, 305 F.3d at 1334 (citing Restatement (Second)

of Contracts § 350 cmt. b).

       Our breach-of-contract cases have dealt only with the duty to mitigate damages

incurred after a total breach. See, e.g., LaSalle Talman Bank v. United States, 317 F.3d

1363, 1374 (Fed. Cir. 2003); Robinson, 305 F.3d at 1332; Cascade Pac. Int’l v. United

States, 773 F.2d 287, 294 (Fed. Cir. 1985). But we see no reason why efforts to avoid

damages in contemplation of a partial breach should not also be recoverable. Section

350, comment b of the Restatement of Contracts advises that “[o]nce a party has

reason to know that performance by the other party will not be forthcoming, . . . he is

expected to take such affirmative steps as are appropriate in the circumstances to avoid

loss by making substitute arrangements or otherwise.”          Indiana Michigan is “not

precluded from recovery . . . to the extent that [it] has made reasonable but

unsuccessful efforts to avoid loss.”      Id. § 350(2).   Hence, mitigation damages are

available for pre-breach costs should the obligee elect to treat the obligor’s breach as

partial, while pre-breach damages for anticipatory breach are available should a party

elect to treat the obligor’s breach as total.

       It is beyond debate that because the government unequivocally announced in

1994 that it would not meet its contractual obligations beginning in 1998, the utilities

were in fact obligated to take mitigatory steps. It would have been improvident for

Indiana Michigan to have waited until January 1998 before deciding what to do with its




04-5122                                         8
nuclear waste. Indeed, the loses which the utilities are obligated to mitigate are not

merely pecuniary unto themselves, e.g., the increased cost of obtaining storage for SNF

on short notice.   Having been placed in a position where they are required to find

alternate storage for SNF, the utilities must de facto accept responsibility to guard

against the environmental impact of improperly-disposed and maintained SNF, a

situation which the NWPA was enacted to avoid.

                                            C.

      While partial breach claimants may recover pre-breach mitigation damages, on

these facts, the trial court’s finding that Indiana Michigan is not entitled to damages is

supportable. Usually, “[i]f issues are determined but the judgment is not dependent

upon the determinations, relitigation of those issues in a subsequent action between the

parties is not precluded.” Restatement (Second) of Judgments § 27 cmt. h (1982); see

also Fibreboard Paper Prods. Corp. v. East Bay Union of Machinists, 344 F.2d 300, 306

(9th Cir. 1965), cert. denied, 382 U.S. 826 (1965) (“It is also the rule that where

[collateral estoppel] is asserted, the earlier determination must have been of a question

of fact essential to the earlier judgment.”).    Here, the trial court’s incorrect legal

determination that Indiana Michigan’s pre-breach mitigation damages were not

recoverable did not depend on its factual findings, and the facts derived are not so

infected by legal error as to require remand.

      The presence of a duty to mitigate does not perforce make the pre-breach costs

incurred by Indiana Michigan to store its SNF recompensable; appellant must prove

foreseeability, causation, and reasonableness.      It failed to make such a showing.

Indiana Michigan’s pre-breach costs were not caused by any anticipated DOE delay in




04-5122                                     9
performance. It authorized the expenditure for its reracking projects in 1989, in the

normal course of business, six years before the 1994 Notice of Inquiry announced

DOE’s inability to begin timely SNF collection. In light of that fact, the trial court found

that Indiana Michigan’s rerack schedule was not affected by 1987 and 1989 DOE

announcements projecting delays in the scheduled January 1998 acceptance start date.

And appellant’s decision to perform a full, instead of a partial, rerack in 1995 was purely

a business judgment which it would have had to pursue irrespective of DOE’s partial

breach.

       The credited evidence also showed that the utility’s investment in the private

storage facility was speculative and that the high cost of the venture was unforeseeable.

In 1994, Indiana Michigan and several other nuclear utilities sought to construct and

operate their own storage facility for SNF storage, ostensibly in contemplation of DOE’s

impending breach.       Indiana Michigan invested $7.2 million.           Its own witness

characterized the planned facility, in which it abandoned financial investment in 2002,

as “too speculative” when proposed. While DOE should have foreseen that its breach

would force Indiana Michigan to find alternate storage for its SNF, it is not liable for such

a speculative venture and unforeseeable costs.

                                             II.

                                             A.

       The trial court did not err in concluding that a claim for partial breach precludes

an award of future damages. For this proposition it also cited Coughlin, 262 P.2d at

311: “If the breach is partial only, the injured party may recover damages for

nonperformance only to the time of trial and may not recover damages for anticipated




04-5122                                      10
future nonperformance.”          Indiana Michigan, 60 Fed. Cl. at 642 (emphasis added).

Because of its highly speculative nature, a claimant may not recover, at the time of the

first suit for partial breach, prospective damages for anticipated future nonperformance

resulting from the same partial breach. See San Carlos Irrigation Dist., 111 F.3d at

1563 (“[C]ontract law precludes recovery for speculative damages.” (citations omitted));

see also 9 Arthur L. Corbin, Corbin on Contracts § 956 (Interim ed. 1993) (“It has been

thought that where there has been no repudiation [e.g., no total breach], the plaintiff can

recover damages for his injury only to the date of the writ—that he must treat the breach

as only ‘partial’[.]” (emphasis added)). Future damages could have been awarded had

Indiana Michigan claimed total breach. See Restatement (Second) of Judgments § 26

cmt. g (where a plaintiff commences an action for total breach, “he is obliged in order to

avoid ‘splitting,’ to claim all his damages with respect to the contract, prospective as well

as past, and judgment in the action precludes any further action by the plaintiff for

damages arising from the contract[.]” (emphasis added)). Because its claim is premised

upon the government’s partial breach, its damages were limited to those costs incurred

prior to the date of its suit.

       Indiana Michigan can, however, obtain recovery for post-breach damages as

they are incurred. It argues that, because it is known that DOE will not perform until

2010 at the earliest, it ought to be awarded its future damages immediately.            The

government, for its part, agreed with the trial court’s assertion that Indiana Michigan can

maintain future suits. We agree with the government, and concur in the proposition that

“[i]f the breach of an entire contract is only partial, the plaintiff can recover only such

damages as he or she has sustained, leaving prospective damages to a later suit in the




04-5122                                       11
event of further breaches.”). 22 Am. Jur. 2d Damages § 488 (2003). The Restatement

of Judgments counsels, in relevant part:

       (1) When any of the following circumstances exists, the general rule[s of
       merger and bar do] not apply to extinguish the claim, and part or all of the
       claim subsists as a possible basis for a second action by the plaintiff
       against the defendant:
               (a) The parties have agreed in terms or in effect that the plaintiff
       may split his claim, or the defendant has acquiesced therein; or
               (b) The court in the first action has expressly reserved the plaintiff's
       right to maintain the second action; or

                 ...

              (e) For reasons of substantive policy in a case involving a
       continuing or recurrent wrong, the plaintiff is given an option to sue once
       for the total harm, both past and prospective, or to sue from time to time
       for the damages incurred to the date of suit, and chooses the latter
       course[.]

Restatement (Second) of Judgments § 26 (1982). Comment g to that section states, in

relevant part:

       A judgment in an action for breach of contract does not normally preclude
       the plaintiff from thereafter maintaining an action for breaches of the same
       contract that consist of failure to render performance due after
       commencement of the first action.

       ...

       In the event of a “material” breach . . . that is not accompanied or followed
       by a repudiation, the plaintiff is entitled to treat the contract as at an end
       and to recover damages for performances not yet due as well as those
       already due on the theory that there has been a total breach of contract. If
       the plaintiff does this, a judgment extinguishing the claim under the rules
       of merger or bar precludes another action by him for further recovery on
       the contract. On the other hand, although the breach is material, the
       plaintiff may elect to treat it as being merely a partial breach. If he so
       elects, he is entitled to maintain an action for damages sustained from
       breaches up to the time of the institution of the action, and the judgment
       does not preclude a further action by him for a breach occurring after that
       date.




04-5122                                      12
Id. § 26 cmt. g (emphasis added); see also 9 Corbin on Contracts, § 946 (“In some

cases [an injured party] may elect to regard [a] breach as partial, proceed with [its] own

performance, sue for the partial injury, and maintain a second suit in case a further

breach occurs.”). When a party sues for partial breach, it retains its right to sue for

damages for its remaining rights to performance. Restatement (Second) of Contracts

§ 236(2) (1981). This is an exception to the doctrine of res judicata, which, in its claim

preclusion form, provides that final judgment on a claim extinguishes “‘all rights of the

plaintiff to remedies against the defendant with respect to all or any part of the

transaction, or series of connected transactions, out of which the action arose.’” Young

Eng’rs, Inc. v. United States Int’l Trade Comm’n, 721 F.2d 1305, 1314 (Fed. Cir. 1983)

(quoting Restatement (Second) of Judgments § 24 (1982)).             We agree with the

exceptions to the rules of merger and bar set out in Restatement (Second) of

Judgments, sections 26(1)(b) and (e).        Indiana Michigan’s grievance falls within

subsection (e)’s exception for injury experienced during the execution phase of a

continuing contract; because it has sued for partial breach, ongoing obligations exist for

both parties.

                                            B.

       Because Indiana Michigan may bring suits for damages in the future, we must

address its concern over the statute of limitations applicable to those suits. “Every claim

of which the United States Court of Federal Claims has jurisdiction shall be barred

unless the petition thereon is filed within six years after such claim first accrues.” 28

U.S.C. § 2501 (2000). “The statute of limitations is jurisdictional in nature and, as an

express limitation on the waiver of sovereign immunity, may not be waived.” Hart v.




04-5122                                     13
United States, 910 F.2d 815, 818-19 (Fed. Cir. 1990). However, “a cause of action

accrues [only] when all the events have occurred that fix the defendant's alleged liability

and entitle the plaintiff to institute an action.” Fallini v. United States, 56 F.3d 1378,

1380 (Fed. Cir. 1995). In the case of the continuing contractual obligations owed after

an initial suit for partial breach has been filed, subsequent claims for future damages

are considered to accrue for the purposes of the statute of limitations at the time such

damages are incurred. Accordingly, Indiana Michigan must bring any future actions for

damages related to DOE’s breach of the Standard Contract within six years of incurring

such damages.

                                       Conclusion

       Accordingly, the judgment of the United States Court of Federal Claims is
affirmed.



                                       AFFIRMED




04-5122                                     14
