Shell Oil Company v. United States

United States Court of Appeals
for the Federal Circuit
______________________
SHELL OIL COMPANY, ATLANTIC RICHFIELD
COMPANY, TEXACO, INC., AND UNION OIL
COMPANY OF CALIFORNIA,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5051
______________________
Appeal from the United States Court of Federal
Claims in Consolidated Nos. 06-CV-0141 and 06-CV-1411,
Judge Thomas C. Wheeler.
______________________
Decided: April 28, 2014
______________________
MICHAEL W. KIRK, Cooper & Kirk, PLLC, of Washing-
ton, DC, argued for plaintiffs-appellants. With him on the
brief were VINCENT J. COLATRIANO and PETER A.
PATTERSON.
STEPHEN C. TOSINI, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were STUART F. DELERY,
2 SHELL OIL COMPANY v. US
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and FRANKLIN E. WHITE, JR., Assistant Director.
HILARY S. CAIRNIE, BakerHostetler LLP, of Washing-
ton, DC, for amicus curiae American Fuel & Petrochemi-
cal Manufacturers. Of counsel were RICHARD B. RAILE
and CHRISTOPHER H. MARRARO.
DANIEL M. STEINWAY, Baker Botts L.L.P., of Washing-
ton, DC, for amicus curiae Exxon Mobil Corporation.
With him on the brief were WILLIAM S. FOSTER, JR., and
MICHAEL PATRICK MCGOVERN.
______________________
Before O’MALLEY, REYNA, AND WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge REYNA.
WALLACH, Circuit Judge.
The seventieth anniversary of the end of active United
States participation in the Second World War will fall on
September 2 of next year. A nation of pragmatists, we
tend to forget our history until necessity revives our
memory. 1 To resolve this contract claim by Shell Oil Co.
1 “‘There are no new problems in the law, only for-
gotten solutions[,] and the issues which arose yesterday
will always arise again tomorrow.’” Jeremy Rabkin &
Ariel Rabkin, Navigating Conflicts in Cyberspace: Legal
Lessons from the History of War at Sea, 14 Chi. J. Int’l L.
197, 198 (2013) (quoting Evan J. Wallach, Partisans,
Pirates, and Pancho Villa: How International and Na-
tional Law Handled Non-State Fighters in the “Good Old
Days” Before 1949 and That Approach’s Applicability to
the “War on Terror,” 24 Emory Int’l L. Rev. 549, 552–53
(2010)).
SHELL OIL COMPANY v. US 3
(“Shell”), Atlantic Richfield Co. (“ARCO”), Texaco, Inc.
(“Texaco”), and Union Oil Co. of California (“Union Oil”)
(collectively, “the Oil Companies”), we must recall and
place into its appropriate context the atmosphere of stark
determination for victory at all costs, which drove our war
effort after the Japanese Empire attacked the United
States Naval Base at Pearl Harbor on December 7, 1941.
Each of the Oil Companies entered into contracts with
the United States to provide high-octane aviation gas
(“avgas”) to fuel military aircraft as part of the national
war effort (“the avgas contracts”). The production of
avgas resulted in waste products such as spent alkylation
acid and “acid sludge.” The Oil Companies disposed of
such acid waste by contracting with Eli McColl, a former
Shell engineer, to dump the waste at real property in
Fullerton, California (“the McColl site”). Over fifty years
later, California and the United States obtained compen-
sation from the Oil Companies pursuant to the Compre-
hensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., for the
costs of cleaning up the McColl site. The Oil Companies
filed suit in the Court of Federal Claims, arguing the
avgas contracts require the Government to indemnify
them for the CERCLA costs. The Court of Federal Claims
granted summary judgment in favor of the Government
and denied the Oil Companies’ motion for summary
judgment. Shell Oil Co. v. United States, 108 Fed. Cl. 422(Fed. Cl. 2013) (“Shell Remand Decision”). Because the
avgas contracts require the Government to reimburse the
Oil Companies for their CERCLA “charges,” this court
reverses with respect to breach of contract liability. The
Court of Federal Claims correctly determined, however,
that material factual disputes preclude granting sum-
mary judgment on damages, and that issue is accordingly
remanded for trial.
4 SHELL OIL COMPANY v. US
BACKGROUND
I. World War II and the Need for Avgas
Compared to other available fuels, high-octane avgas
enabled aircraft to fly faster and higher, with improved
rates of climb and higher payload carrying capacity. It
was “the most critically needed refinery product” during
World War II and was essential to the United States’ war
effort. 2 J.A. 477 ¶ 4. It was still a new technology in the
late 1930s, however, and production was nowhere near
sufficient for the massive quantities the United States
and its allies would need to prosecute the war.
In 1942 and 1943, the Government, acting through
the Defense Supplies Corporation (“DSC”) entered into
the avgas contracts with the Oil Companies. The avgas
contracts were long-term (primarily three-year) contracts
to purchase avgas from the Oil Companies’ refineries in
Southern California, and enabled the Oil Companies to
build the new refining facilities needed to produce the
high levels of avgas vital to the war effort.
At the time the contracts were signed, the Govern-
ment exercised substantial wartime regulatory control
over almost every aspect of the petroleum industry. It
had authority to impose obligatory product orders on
private companies, with noncompliance subject to crimi-
2 “At least since the transformation of navies from
coal to diesel fuels in the early twentieth century availa-
bility of sources of petroleum products has been recog-
nized by great powers as vital to their national interest.”
Evan J. Wallach, The Use of Crude Oil by an Occupying
Power as a Munition de Guerre, 41 INT’L & COMP. L.Q.
287, 287 (1992); see also John W. Frey & H. Chandler Ide,
A History of the Petroleum Administration for War 1
(1946), available at J.A. 431 (“World War II, from begin-
ning to end, was a war of oil.”).
SHELL OIL COMPANY v. US 5
nal sanctions or Government takeover. See Selective
Training and Service Act of 1940, Pub. L. No. 76-783, ch.
720, § 9, 54 Stat. 885, 892 (1940). Facilities that accepted
such obligatory product orders had to prioritize govern-
ment military contracts above all other contracts. Act of
May 31, 1941, Pub. L. No. 77-89, ch. 157, 55 Stat. 236(1941). To the extent facilities relied on scarce raw mate-
rials, the Government could regulate supply chains to
ensure continuing production. Id.; see also Second War
Powers Act of 1942, Pub. L. No. 77-507, ch. 199, § 301, 56
Stat 176, 178 (1942) (authorizing the President to allocate
any material or facility as necessary “in the public inter-
est and to promote the national defense” whenever the
country’s defense needs would create a shortage in such
materials or facilities).
The Government regulatory entities most relevant to
the avgas contracts were (1) the Office of Petroleum
Coordinator for National Defense (“OPC”), later replaced
by the Petroleum Administration for War (“PAW”), and
(2) the Office of Production Management (“OPM”), later
run by and then replaced by the War Production Board
(“WPB”). The WPB and PAW were created in January
and December 1942, respectively. The WPB had primary
authority over war procurement and production, and
cooperated with the PAW to determine petroleum re-
quirements and set national priorities for supplying the
petroleum industry. Subject to the direction of the WPB,
the PAW was charged with ensuring “adequate supplies
of petroleum for military, or other essential uses” and
“[e]ffect[ing] the proper distribution of such amounts of
materials.” Exec. Order No. 9276, 7 Fed. Reg. 10,091,
10,092 (Dec. 4, 1942). The “PAW told the refiners what to
make, how much of it to make, and what quality.” John
W. Frey & H. Chandler Ide, A History of the Petroleum
Administration for War 219 (1946), available at J.A. 1917.
Days after Pearl Harbor, the Government recognized
the need to quickly mobilize avgas production, with the
6 SHELL OIL COMPANY v. US
OPC stating: “‘It is essential, in the national interest that
the supplies of all grades of aviation gasoline for military,
defense and essential civilian uses be increased immedi-
ately to the maximum.’” J.A. 498–99 (quoting OPC Rec-
ommendation No. 16) (emphases added). Then-existing
facilities could not produce the required levels of avgas,
necessitating construction of additional facilities. Howev-
er, the Government’s substantial authority to control
production only extended to existing facilities; it could not
force companies to invest in new ones. See, e.g., An Act to
Expedite National Defense and for Other Purposes, Pub.
L. No. 76-671, ch. 440, § 8(b), 54 Stat. 676, 680 (1940)
(authorizing the Secretary of the Navy to nationalize and
operate “any existing manufacturing plant or facility
necessary for the national defense” when certain condi-
tions were met) (emphasis added). A further stumbling
block for the Government was that contracts with the
Army and the Navy were subject to annual Congressional
appropriations and thus limited to a one-year term. Such
one-year contracts did not provide the long-term security
necessary to justify the Oil Companies’ investment in new
facilities. In light of these limitations, the Government
turned to the DSC, a government-owned corporation
authorized to acquire critical and strategic materials,
including avgas.
The DSC was a subsidiary of the Reconstruction Fi-
nance Corporation (“RFC”), another government-owned
corporation. The designation in 1941 of avgas as a critical
material enabled the RFC and its subsidiaries to buy, sell,
and produce avgas and to make loans to companies to
construct avgas production facilities. See Act of June 25,
1940, Pub. L. No. 76-664, ch. 427, § 5(1), 54 Stat. 572, 573
(codified at 15 U.S.C. § 606b (1940)). After purchasing
avgas from the Oil Companies, the DSC resold it to the
Army and the Navy at the national price established by
the PAW (or its predecessor, the OPC).
SHELL OIL COMPANY v. US 7
Between 1942 and 1943, the Oil Companies entered
into contracts with the DSC agreeing to sell vast quanti-
ties of avgas. 3 The contracts set forth a base price for
each barrel of avgas, which was negotiated individually
with each refiner based on the refiner’s production costs.
The base price was calculated with the goal of permitting
an estimated profit of between 6% and 7%. Profits were
further subject to the Renegotiation Act of 1942, which
required contractors to repay excess profits to the Gov-
ernment. Pub. L. No. 77-528, ch. 247, § 403, 56 Stat. 226,
245 (1942).
Given the low profit margin, the avgas contracts con-
tained various concessions to the Oil Companies. They
were three-year contracts, thus providing some measure
of certainty that the newly-constructed avgas production
facilities would pay off over time. They also contained
cost-allocation measures to limit the Oil Companies’ risk
in producing avgas. For instance, the agreed-upon base
price of avgas was subject to adjustment depending on the
Oil Companies’ costs, including the price of crude and
other raw materials, and the transportation of raw mate-
rials. The contracts also required the Buyer, DSC, to pay
“any now existing taxes, fees, or charges . . . imposed upon
[the Oil Companies] by reason of the production, manu-
facture, storage, sale or delivery of [avgas].” E.g., J.A. 111
(1942 Shell contract) (emphasis added).
Relevant to the CERCLA charges in this case, another
subsection required DSC to reimburse the Oil Companies
for “any new or additional taxes, fees, or charges, . . .
3 At least some of the avgas contracts provided for
loans to the Oil Companies to expand avgas production
facilities, and required the Oil Companies to use “best
efforts” to complete such construction as quickly as possi-
ble. See, e.g., J.A. 97, 106 (1942 Shell contract) (promising
to “maintain work on the expansion day and night”).
8 SHELL OIL COMPANY v. US
which [the Oil Companies] may be required by any munic-
ipal, state, or federal law in the United States or any
foreign country to collect or pay by reason of the produc-
tion, manufacture, sale or delivery of the [avgas]” (“the
new or additional charges provision”). E.g., J.A. 111
(emphases added). These price-adjustment mechanisms
ensured the Oil Companies would not be forced into loss-
making activities by factors outside their control, such as
the costs of materials and transportation, or unforeseen
Government-imposed charges. The avgas contracts thus
“assured the manufacturer of his costs, plus a fair but
moderate profit.” J.A. 1996 (statement of the Chief Legal
Counsel for the PAW to the House Appropriations Com-
mittee).
During contract negotiation and the years that fol-
lowed, the Government’s primary concern was maximum
avgas production. The Government directed the Oil
Companies to “undertake extraordinary modes of opera-
tion which were often uneconomical and unanticipated at
the time of refiners’ entry into their [avgas] contracts.”
J.A. 514. For example, the PAW sometimes ordered
companies to purchase raw materials outside their nor-
mal supply chain to achieve maximum avgas production.
The Aviation Gasoline Reimbursement Plan required the
Government to assume the costs of such uneconomical
operations.
The arrangement between the Oil Companies and the
Government was a cooperative endeavor in which the Oil
Companies worked to achieve the Government’s goal of
maximizing avgas production and the Government as-
sumed the risks of such increased production. The Oil
Companies held up their end of the bargain: avgas pro-
duction increased over twelve-fold from approximately
40,000 barrels per day in December 1941 to 514,000
SHELL OIL COMPANY v. US 9
barrels per day in 1945, and was crucial to Allied success
in the war. 4
II. Avgas Production and Waste Products
Avgas consists of an ordinary gasoline base, blended
with petroleum distillates and chemical additives. Alkyl-
ate is the most prevalent additive (at an amount of 25% to
40%) and is produced by alkylation, a process that uses
98% purity sulfuric acid as a catalyst. Because of the
importance of avgas to the war effort, the WPB directed
most available sulfuric acid to avgas production.
Spent alkylation acid is a byproduct of alkylation, and
has a lower acid content than sulfuric acid. During the
relevant time period, spent alkylation acid could be (1)
reprocessed to its former 98% acid percentage, (2) used to
process other petroleum products, like motor gasoline and
kerosene, or (3) discarded as waste. Treating other petro-
leum products with spent alkylation acid further diluted
its acid content until it became “acid sludge,” which had
acid levels of between 35% and 65%.
Predictably, the Oil Companies’ success in increasing
avgas production resulted in a corresponding increase in
sulfuric acid consumption, which increased five-fold from
1941 to 1944. 5 Facilities to reprocess the spent alkylation
4 After the war, the new avgas production facilities’
usefulness was questionable; avgas consumption in the
United States dropped to 70,000 barrels a day. Over
time, however, the Oil Companies identified new uses for
these facilities. The DSC was dissolved in 1945, and the
RFC was dissolved in 1957, at which time the RFC trans-
ferred all relevant liabilities and obligations to the Gen-
eral Services Administration. See Reorganization Plan
No. 1 of 1957, 71 Stat. 647 (1957).
5 The increase in sulfuric acid use did not match the
increase in avgas production because the Oil Companies
10 SHELL OIL COMPANY v. US
acid did not increase apace, however. The Government
twice refused applications to construct new acid pro-
cessing facilities, and one of the facilities that did exist
failed to operate at its design capacity. Moreover, the
scarcity of available railroad tank cars (and the WPB’s
refusal to make transportation of acid waste a priority)
meant the Oil Companies were unable to transport acid
sludge for reprocessing or other uses. See J.A. 565–66
(acid sludge could be used as fertilizer, but the scarcity of
railroad tank cars prevented transporting acid sludge to
the fertilizer plant). By late 1944 and 1945, the Oil
Companies were unable to reuse the vast amounts of
spent alkylation acid at their own refineries, and ulti-
mately dumped much of it at the McColl site. Although
dumping and burning acid waste were common before the
war, the lack of reprocessing facilities and transportation
options (and resulting bottleneck of acid waste) necessi-
tated dumping and burning larger quantities of acid
waste than ever before.
The Oil Companies dumped waste at the McColl site
from 1942 until shortly after the war ended. Approxi-
mately 12% of the waste was spent alkylation acid, and
another 82.5% was acid sludge resulting from chemical
treatment of other petroleum products. The remaining
5.5% was acid sludge arising from treatment of Govern-
ment-owned benzol, for which the Government was held
liable in the CERCLA litigation. Only the non-benzol
waste (i.e., the spent alkylation acid and the remaining
acid sludge) is at issue in this case. Shell contributed
most of the acid waste at the McColl site—at least 60%.
ARCO contributed 10% to 20%, and also relied on other
disposal methods, such as burning. Texaco dumped no
waste until almost the end of the war, and instead burned
discovered a method of processing avgas that used far less
sulfuric acid than had previously been necessary.
SHELL OIL COMPANY v. US 11
its acid sludge waste until late 1944. Some of Union Oil’s
sludge was reprocessed rather than dumped.
The Allies achieved victory in Europe on May 8, 1945.
Japan officially surrendered on September 2, 1945. The
United States Government no longer required huge
quantities of avgas, and terminated the avgas contracts in
1945 or soon thereafter.
III. McColl CERCLA Litigation
Over 45 years later, in 1991, the United States and
California brought a CERCLA action against the Oil
Companies to recover the costs of cleaning up the McColl
site. The district court held the Oil Companies, among
other parties, were jointly and severally liable for the acid
waste they dumped at the McColl site, United States v.
Shell Oil Co. (Shell I), 841 F. Supp. 962, 976 (C.D. Cal.
1993), but then allocated 100% of the cleanup costs to the
Government as an “arranger” of the disposal, United
States v. Shell Oil Co. (Shell II), 13 F. Supp. 2d 1018,
1030 (C.D. Cal. 1998); see also 42 U.S.C. § 9607(a)(3)
(1994) (extending CERCLA liability to “any person who by
contract, agreement, or otherwise arranged for disposal or
treatment, or arranged with a transporter for transport
for disposal or treatment, of hazardous substances”). The
Ninth Circuit affirmed the Oil Companies’ liability, but
reversed the allocation to the United States, holding the
United States was not an “arranger” for the non-benzol
acid waste. United States v. Shell Oil Co. (Shell III), 294
F.3d 1045, 1056, 1058 (9th Cir. 2002) (“No court has
imposed arranger liability on a party who never owned or
possessed, and never had any authority to control or duty
to dispose of, the hazardous materials at issue.”) (internal
quotation marks and citation omitted).
Following remand, the district court transferred the
Oil Companies’ breach of contract counterclaim to the
Court of Federal Claims pursuant to 28 U.S.C. § 1631.
The Oil Companies voluntarily dismissed the transferred
12 SHELL OIL COMPANY v. US
Complaint without prejudice, exhausted their administra-
tive remedies with the General Services Administration
pursuant to the Contract Settlement Act of 1944 (“CSA”),
Pub. L. No. 78-395, ch. 358, 58 Stat. 694 (1944) (codified
at 41 U.S.C. § 113, et seq. (2006)), and filed a new Com-
plaint in the Court of Federal Claims, seeking reim-
bursement for the CERCLA costs.
IV. Court of Federal Claims Litigation
The Court of Federal Claims entered summary judg-
ment in favor of the Oil Companies with respect to breach
of contract liability and damages, holding the Government
was required to reimburse the Oil Companies for 100% of
their non-benzol CERCLA costs. Shell Oil Co. v. United
States, 93 Fed. Cl. 439, 442 (2010); Shell Oil Co. v. United
States, 93 Fed. Cl. 153 (2010). On appeal, this court found
the presiding trial judge had a conflict of interest arising
from his wife’s stock ownership of Chevron Corp., the
parent company of plaintiffs-appellants Texaco and Union
Oil. Shell Oil Co. v. United States, 672 F.3d 1283, 1294
(Fed. Cir. 2012). Because the judge’s failure to recuse
himself was not harmless error, this court vacated and
remanded with instructions that the case be reassigned to
a different judge. Id.On remand, the Court of Federal Claims granted
summary judgment in favor of the Government. Shell
Remand Decision, 108 Fed. Cl. at 422. It held there were
three independent reasons why the Oil Companies were
not entitled to reimbursement under the avgas contracts.
First, it held the CERCLA costs incurred by the Oil
Companies were not “charges” within the meaning of the
new or additional charges provision in the avgas con-
tracts. Id. at 434. Second, even if the contracts required
reimbursement, the court found the Oil Companies re-
leased any valid claim when the contracts were terminat-
ed and “all other issues” were settled in the mid-to-late
1940s. Id. at 436. Finally, the court held that even if the
SHELL OIL COMPANY v. US 13
Oil Companies had otherwise valid indemnification
claims based on the avgas contracts, the Anti-Deficiency
Act barred such indemnification. Id. at 437.
The Court of Federal Claims denied the Oil Compa-
nies’ motion for summary judgment for the additional
reason that there were disputed facts over how much of
the non-benzol waste at the McColl site was dumped “by
reason of” the Oil Companies’ “production, manufacture,
sale or delivery” of avgas. Id. at 446–48.
The Oil Companies filed this timely appeal. This
court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3)
(2012).
DISCUSSION
On appeal, the Oil Companies challenge each of the
three independent bases for the trial court’s decision.
They further contend there is no genuine dispute that
they are entitled to recover 100% of the non-benzol
CERCLA costs. Each argument is addressed in turn.
This court reviews the Court of Federal Claims’ con-
tract interpretation de novo. Ford Motor Co. v. United
States, 378 F.3d 1314, 1316 (Fed. Cir. 2004). “Summary
judgments also receive plenary review, the appellate
tribunal applying the same criteria as did the trial court,
with all justifiable factual inferences drawn in favor of the
non-movant.” Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
I. The Avgas Contracts Require Reimbursement of the Oil
Companies’ CERCLA Costs
The parties dispute the meaning of “charges” as it ap-
pears in the new or additional charges provision. The Oil
Companies contend it is a broad indemnification provision
designed to reimburse the Oil Companies for all Govern-
ment-imposed “expenses” or “costs,” including CERCLA
response costs. The Government claims that the plain
14 SHELL OIL COMPANY v. US
language of the contract and other contemporaneous
wartime contracts show that environmental cleanup costs
are not “taxes, fees, or charges” as contemplated by the
avgas contracts.
The avgas contracts promise reimbursement for “any
new or additional taxes, fees, or charges” imposed on the
Oil Companies, with certain exceptions not relevant here.
E.g., J.A. 111. The two paragraphs following this provi-
sion require the Government to pay “any now existing
taxes, fees, or charges,” and describe the Government’s
obligation in the event of a disagreement regarding the
contractor’s entitlement to an exemption. E.g., J.A. 111–
12. The avgas contracts provide (with some insignificant
wording variations marked in brackets):
Taxes.
[(a)] Buyer shall pay in addition to the prices as
established in [Sections IV and V] hereof [“Price
and Payment” and “Price Escalation” clauses], any
new or additional taxes, fees, or charges, other
than income, excess profits, or corporate franchise
taxes, which Seller may be required by any munic-
ipal, state, or federal law in the United States or
any foreign country to collect or pay by reason of
the production, manufacture, sale or delivery of
the commodities delivered hereunder. Buyer shall
also pay any such taxes on crude petroleum, or
the transportation thereof, to the extent such tax-
es result in increased cost of the commodities de-
livered hereunder not compensated for by [Section
V] hereof.
[(b)] Buyer shall also pay in addition to the prices
as established in [Sections IV and V] hereof, any
now existing taxes, fees, or charges measured by
the volume or sales price of the aviation gasoline
delivered hereunder, imposed upon Seller by rea-
son of the production, manufacture, storage, sale
SHELL OIL COMPANY v. US 15
or delivery of such gasoline, unless Buyer or Seller
is entitled to exemption from a given tax, fee or
charge by virtue of Buyer’s governmental status;
it being understood that Buyer now believes that
both Buyer and Seller are entitled to such exemp-
tion. Seller represents that the taxes, fees and
charges referred to in this paragraph have not
been included in its computation of costs on which
the prices set forth in [Section IV] hereof are
based.
[(c)] If in any case the parties cannot agree on the
question as to whether or not Buyer or Seller is
entitled to exemption from a given tax[, fee or
charge] by virtue of Buyer’s governmental status,
the burden shall be upon Buyer to obtain a ruling
in writing from a duly constituted and authorized
governmental tax authority as to such exemption.
Until such ruling is obtained Buyer shall pay the
amount of the tax to Seller or to the appropriate
tax collecting agency or make satisfactory ar-
rangements with such tax collecting agency.
J.A. 111–12 (Shell contract, Apr. 10, 1942); J.A. 136–37
(Shell contract, May 1, 1943); J.A. 156–57 (Union Oil
contract, Dec. 31, 1942, different section numbering); J.A.
179–80 (Union Oil contract, May 1, 1943); J.A. 207 (ARCO
contract, Feb. 3, 1942, bracketed language in section (c),
different paragraph labeling); J.A. 227–28 (ARCO con-
tract, Feb. 20, 1943, bracketed language in section (c));
J.A. 254 (Texaco contract, Jan. 17, 1942, different lan-
guage in subsection (b), different section numbering and
paragraph labeling); J.A. 278–79 (Texaco contract, Feb. 8,
1943, different language in subsection (b)) (emphases
added to disputed term).
“Reading the relevant clause as a whole, including the
title, ‘Taxes,’” the Court of Federal Claims found “it was
plainly intended as a price-adjustment mechanism in the
16 SHELL OIL COMPANY v. US
event the Oil Companies were assessed additional or
unanticipated taxes as a result of their avgas production.”
Shell Remand Decision, 108 Fed. Cl. at 432 (emphasis
added). It accorded a “fairly narrow tax-related meaning”
to “charges,” interpreting it to mean “an encumbrance,
lien, or other like financial burden or liability, especially
one that relates to real property.” Id. at 432–33. Such an
interpretation, the trial court found, was consistent with
the noscitur a sociis canon of interpretation, which “‘coun-
sels that a word [be] given more precise content by the
neighboring words with which it is associated.’” Id. at 432
(holding that “‘charges’ [should] be ‘given more precise
content’ by ‘taxes’ and ‘fees’”) (internal citation omitted).
The Court of Federal Claims found that multiple tex-
tual signals supported its narrow interpretation of
“charges” as an encumbrance or lien: (1) the provisions
are entitled “Taxes”; (2) they sometimes use the “umbrella
identifier ‘such taxes’” to refer to “‘taxes, fees, or charges,’”
id.; and (3) the exclusions from “‘taxes, fees, or charges’”
are “specific types of taxes,” i.e., “‘income, excess profits, or
corporate franchise taxes,’” id.
On appeal, the Oil Companies argue that “charges”
should be interpreted to mean “costs,” including CERCLA
costs. Appellants’ Br. 20–21 (quoting, inter alia, Black’s
Law Dictionary 265 (9th ed. 2009) (“charge” means
“[p]rice, cost or expense”); Black’s Law Dictionary 311 (3d
ed. 1933) (“charges” means “[t]he expenses which have
been incurred, or disbursements made, in connection with
a contract, suit, or business transaction”)). According to
the Oil Companies, the “new or additional taxes, fees, or
charges” mentioned in the avgas contracts “clearly refer to
different classes of payments,” whereas encumbrances or
liens (as the trial court interpreted “charges”) do not refer
to payment, “but rather to obligations or burdens often
attached to property, usually for the purpose of securing a
payment.” Appellants’ Br. 27.
SHELL OIL COMPANY v. US 17
The Government apparently agrees that the trial
court’s interpretation of “charges” is incorrect. It does not
defend the Court of Federal Claims’ interpretation of
“charges” as “an encumbrance or lien,” but instead states
that “‘charge’ plainly connotes an amount paid to receive
a privilege, product, or service.” Appellee’s Br. 29. It
nonetheless argues charges cannot mean “costs,” because
another part of the avgas contracts uses “costs” in a
different context. Id. at 23 (citing J.A. 111 (“Buyer shall
also pay any such taxes on crude petroleum or the trans-
portation thereof, to the extent such taxes result in in-
creased cost of the commodities delivered hereunder.”)).
The Government contends this shows the parties “neces-
sarily ascribed different meanings to the [words charges
and costs].” Id.
It is unclear how the Government’s proposed defini-
tion of charges as “an amount paid to receive a privilege,
product, or service” differs from the plain meaning of
“costs.” See Black’s Law Dictionary 397 (9th ed. 2009)
(defining “cost” as “[t]he amount paid or charged for
something; price or expenditure. Cf. EXPENSE”). Moreo-
ver, the Government’s earlier arguments to the Court of
Federal Claims conceded that the new or additional
charges provision covers “new costs (with exceptions not
pertinent here) imposed by authorities at any level of
Government ‘by reason of the production, manufacture or
sale of [avgas].’” 6 Defendant’s Motion to Dismiss the
Complaint at 11, Shell Oil Co. v. United States, 93 Fed.
Cl. 153 (2010) (No. 06-CV-141), ECF No. 7 (emphasis
6 Even if the Government’s proposed definition is
not synonymous with “costs,” it plainly includes CERCLA
liability costs: “[T]he costs at issue were ‘amount[s]’ the
Oil Companies ‘paid to receive . . . service[s],’ specifically
the removal of hazardous substances from the McColl Site
and remediation of their effects.” Reply Br. 4.
18 SHELL OIL COMPANY v. US
added) (citation omitted). In light of the common mean-
ing of “charges” as “costs or expenses,” and because the
Government’s own proposed definition accords with that
meaning, this court interprets “charges” to mean “costs.” 7
The Government nevertheless argues that “charges”
cannot include CERCLA costs, because “the word ‘charge’
appears nowhere in CERCLA, with the exception of its
use in the context of ‘person in charge,’ 42 U.S.C. §§ 9603,
9604, and one discussion of a party ‘sought to be charged’
for ‘natural resource damage.’ 42 U.S.C. § 9607(f)(1).”
Appellee’s Br. 29. The Government further observes that
“the district court and appellate CERCLA cases under-
pinning this matter wholly lack the word ‘charge’” (with
exceptions not relevant here), and argues that “one need
look no further than those cases to determine that the
CERCLA response costs here have not been held to be
‘charges’ under any definition of that term.” Id. at 31.
Contrary to the Government’s arguments, CERCLA
costs are “charges” within the meaning of the relevant
contract provision: The avgas contracts promise reim-
bursement of “any new or additional . . . charges” the
Government imposes on the Oil Companies “by reason of
the production, manufacture, sale or delivery of [avgas].”
7 The dissent offers no different meaning. It agrees
with the trial court’s application of the noscitur a sociis
canon of interpretation, but does not appear to adopt the
trial court’s definition of “charges” as an encumbrance or
lien. See Dissenting Op. at 5. By nevertheless concluding
that the new or additional charges provision only covers
“‘Taxes’ and tax-related items,” id. at 6, the dissent gives
no effect to the parties’ inclusion of “charges” in that
provision, Metric Constr., Inc. v. Nat’l Aeronautics &
Space Admin., 169 F.3d 747, 754 (Fed. Cir. 1999) (“Courts
prefer . . . an interpretation of a contract that gives effect
to all its terms and leaves no provision meaningless.”).
SHELL OIL COMPANY v. US 19
See, e.g., J.A. 111 (emphasis added). CERCLA is a federal
law requiring responsible parties to pay the “costs of
removal or remedial action,” 42 U.S.C. § 9607(a)(4)(A)
(emphasis added), and is thus a charge (i.e., cost) imposed
by a federal law. The plain language of the new or addi-
tional charges provision thus requires the Government to
indemnify the Oil Companies for CERCLA costs incurred
“by reason of” the avgas contracts. The Government’s
search for exactitude in the CERCLA context is beside the
point.
The Government argues that other textual indicators
in the avgas contracts require limiting the scope of in-
demnification. For instance, it argues the new or addi-
tional charges provision only extends to charges imposed
by “duly constituted and authorized governmental tax
authorit[ies].” Appellee’s Br. 35 (internal quotation
marks and citation omitted) (modification in original).
The “duly constituted . . . tax authority” language is
located two paragraphs after the new or additional charg-
es provision, and addresses when “the parties cannot
agree . . . whether or not Buyer or Seller is entitled to
exemption . . . by virtue of Buyer’s governmental status”
(“the exemption provision”). See, e.g., J.A. 112. In such
cases, “the burden shall be upon Buyer to obtain a ruling
in writing from a duly constituted and authorized gov-
ernmental tax authority as to such exemption.” J.A. 112
(emphasis added).
The exemption provision is not relevant to the proper
meaning of “charges.” Only two of the contracts’ exemp-
tion provisions (the ARCO contracts) refer to exemption
from a “given tax, fee or charge,” e.g., J.A. 207; the re-
maining contracts refer only to “exemption from a given
tax,” e.g., J.A. 112. The Government argues that the
association in the ARCO contracts between “taxes, fees, or
charges” and a “governmental tax authority” necessitates
finding that “charges” is limited to taxes imposed by such
bodies. The other six contracts, however, refer only to
20 SHELL OIL COMPANY v. US
taxes imposed by a “governmental tax authority,” omitting
fees and charges. To the extent any conclusion can be
drawn from such language, the express exclusion of “fees
or charges” in most of the contracts suggests that the
parties recognized fees and taxes were not limited to taxes
imposed by tax authorities. 8
Moreover, no contrary conclusion could be reconciled
with the new or additional charges provision at issue,
which expressly applies to charges “required by any
municipal, state, or federal law in the United States or any
foreign country,” and is clearly not limited to laws en-
forced by tax authorities. J.A. 111 (emphasis added). “We
must interpret the contract in a manner that gives mean-
ing to all of its provisions and makes sense.” McAbee
Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed.
Cir. 1996). It would make little sense to give determina-
tive weight to a phrase that appears in a separate provi-
sion, in a minority of the contracts, and which contradicts
the plain scope of the relevant language. After proposing
a broad meaning of “charges” that includes CERCLA
costs, the Government has not shown that other portions
of the contract exempt the Government from indemnify-
ing the Oil Companies for CERCLA costs imposed as a
result of the avgas contracts. 9
8 Nor does the Government contend the ARCO con-
tracts should be construed differently than the other
contracts that lack any reference to “charges” imposed by
a tax authority.
9 The dissent places great weight on other “textual
signals,” including the title of the provision (“Taxes”) and
other portions of the text referring to “taxes, fees and
charges” as “such taxes.” See Dissenting Op. at 4–5.
With respect to the former, the Supreme Court recently
emphasized that it “has placed less weight on” headings
and titles, especially when their “under-inclusiveness . . .
SHELL OIL COMPANY v. US 21
The Government nevertheless argues that indemnifi-
cation is improper because the promise to pay for new or
additional charges cannot encompass environmental
liability. See Appellee’s Br. 18 (“[T]he ‘Taxes’ clause lacks
any language that could be construed to cover environ-
mental remediation resulting from the oil companies’ own
decisions to dump acid waste.”). It argues the avgas
contracts are distinguishable from the World War II
procurement contracts in DuPont and Ford Motor Co.,
where this court required CERCLA indemnification. See
E.I. Du Pont de Nemours & Co. v. United States, 365 F.3d
1367 (Fed. Cir. 2004); Ford Motor Co., 378 F.3d at 1314.
The indemnification provision in DuPont, for example,
agreed “‘to hold [DuPont] harmless against any loss,
expense (including expense of litigation), or dam-
age (including damage to third persons because of death,
bodily injury or property injury or destruction or other-
wise) of any kind whatsoever,’” as long as the loss resulted
from performance under the contract and did not result
from the negligence of DuPont corporate officers or repre-
sentatives. DuPont, 365 F.3d at 1372 (citation omitted)
(emphases removed). This court held DuPont’s “hold
is apparent.” Lawson v. FMR LLC, 134 S. Ct. 1158, 1169
(2014). Because the “Taxes” heading omits the “fees” and
“charges” that are also addressed by the new or additional
charges provision, it is under-inclusive. It is “‘but a short-
hand reference to the general subject matter’ of the provi-
sion, ‘not meant to take the place of the detailed provi-
sions of the text.’” Id. (quoting Trainmen v. Balt. & Ohio
R. Co., 331 U.S. 519, 528 (1947)). Moreover, aside from
reciting the trial court’s reasoning, the Government’s
briefing to this court did not rely on the title of the “Tax-
es” clause, nor on the references to “such taxes.” Like the
other portions of the contract discussed above, these
textual indicators do not alter the plain scope of the new
or additional charges provision.
22 SHELL OIL COMPANY v. US
harmless” provision “‘show[ed] an intent to allocate all
possible liabilities among the parties,’” and that
“‘CERCLA liability must be included among the future
unknown liabilities which the parties allocated between
themselves.’” Id. at 1373 (quoting Elf Atochem N. Am. v.
United States, 866 F. Supp. 868, 870 (E.D. Pa. 1994)).
The procurement contract in Ford Motor Co. required
reimbursement of “allowable costs,” including “‘loss or
destruction of or damage to property as may arise out of
or in connection with the performance of the work under
this contract,’” which this court held covered CERCLA
liability. Ford Motor Co., 378 F.3d at 1319.
The Government argues the avgas contracts contain
neither a “hold harmless” provision, as in DuPont, nor an
“allowable costs” provision, as in Ford Motor Co. As the
Government concedes, however, “no ‘special words’ are
required to create a promise of indemnification.” Appel-
lee’s Br. 37 (quoting Corbitt v. Diamond M. Drilling Co.,
654 F.2d 329, 334 (5th Cir. 1981)). While it is true that
the language in the avgas contracts differs from the
contract language in DuPont and Ford Motor Co., the
relevant portions of the latter contracts also differed from
one another. The proper question is whether the avgas
contracts require the Government to pay the Oil Compa-
nies’ CERCLA charges. Indemnification is required by
the contracts’ promise to pay for “any” government-
imposed “charges” incurred “by reason of” the avgas
contracts, and it is immaterial whether the new or addi-
tional charges provision is identical to the provisions in
DuPont and Ford Motor Co.
The Government further argues the new or additional
charges provision “does not contemplate indemnity for
damages sounding in tort,” and therefore cannot require
CERCLA indemnification. Appellee’s Br. 34. It relies on
a statement in DuPont that “CERCLA evolved from the
doctrine of common law nuisance.” DuPont, 365 F.3d at
1373. Contrary to the Government’s argument, DuPont
SHELL OIL COMPANY v. US 23
supports requiring CERCLA indemnification in this case.
In DuPont, the Government argued the contract’s “hold
harmless” provision did not require reimbursement for
CERCLA liability because CERCLA was not foreseeable
at the time the contract was entered into. Id. This court
rejected that argument, holding there was “no basis in the
law for reading a limitation of foreseeability” into the
contract, which “evidence[d] . . . that indemnification was
available for all claims, foreseeable or not.” Id. In the
alternative, the DuPont court noted the Government’s
concession that nuisance liability would have been fore-
seeable, and observed that “CERCLA evolved from the
doctrine of common law nuisance.” Id.As in DuPont, the avgas contract’s new or additional
charges provision requires reimbursement for even un-
foreseeable charges. The relevant provision in DuPont
made no mention of new or additional charges, yet was
nonetheless found to encompass unforeseeable CERCLA
liability. The avgas contracts’ promise to reimburse for
“new or additional” charges must similarly extend to “all
claims, foreseeable or not.” See id. The DuPont court’s
alternative reasoning, based on nuisance liability, is
irrelevant to the interpretation of the new or additional
charges provision.
The Government offers other contemporaneous con-
tracts as extrinsic evidence that the new or additional
charges provision does not require CERCLA indemnifica-
tion. It relies on Government contracts with Humble Oil
and DuPont that contain both a “hold harmless” clause
and a promise to reimburse for applicable taxes and
charges. See J.A. 889–90, 898–99 (Humble Oil contract
June 1, 1944); J.A. 845, 850 (DuPont contract Nov. 28,
1940). The Government argues these contracts provide
“powerful evidence” that the new or additional charges
provision “[was] never intended to provide the sort of
indemnity that the oil companies seek.” Appellee’s Br. 26.
24 SHELL OIL COMPANY v. US
The Government has not established ambiguity in the
relevant provision, in the absence of which it is improper
to rely on extrinsic evidence. See Coast Fed. Bank, FSB v.
United States, 323 F.3d 1035, 1040 (Fed. Cir. 2006) (en
banc) (“If the provisions are clear and unambiguous, they
must be given their plain and ordinary meaning, and we
may not resort to extrinsic evidence to interpret them.”)
(internal quotation marks and citation omitted). The
Government’s argument is also unpersuasive since the
taxes clauses in the DuPont and Humble contracts are not
the same as the new or additional charges provision in the
avgas contracts. The Humble and DuPont contracts
promise reimbursement for “[a]ll applicable taxes, and
other proper charges,” J.A. 850, and “any applicable
Federal, State or local taxes, assessments or charges,”
respectively. J.A. 889. They do not extend to “new or
additional” government-imposed charges, and are, in fact,
more analogous to the avgas contract’s promise to pay for
“any now existing taxes, fees, or charges.” See J.A. 111.
The Humble and DuPont contracts thus provide no reason
to narrow the otherwise plain meaning of the new or
additional charges provision.
Even assuming the taxes provision in the Humble and
DuPont contracts extends to CERCLA liability, it is not
coextensive with the “hold harmless” clause. The latter
applies to losses arising from destruction of property,
whether or not it is Government imposed, whereas the
former applies to Government-imposed charges, whether
or not loss to property was otherwise incurred. Because
the taxes provision and the “hold harmless” provision
require indemnification for different types of risks, the
fact that both appear in the same contract does not render
either provision “‘superfluous[ ] or redundant,’” as the
Government contends. See Appellee’s Br. 28 (quoting
Medlin Constr. Grp., Ltd. v. Harvey, 449 F.3d 1195, 1200
(Fed. Cir. 2006)).
SHELL OIL COMPANY v. US 25
Finally, to the extent extrinsic evidence is considered,
it confirms that the parties intended “charges” to mean
“costs.” See TEG-Paradigm Envt’l, Inc. v. United States,
465 F.3d 1329, 1338 (Fed. Cir. 2006) (citing Coast Fed.
Bank, 323 F.3d at 1040) (“Although extrinsic evidence
may not be used to interpret an unambiguous contract
provision, we have looked to it to confirm that the parties
intended for the term to have its plain and ordinary
meaning.”). Communications between the parties used
“charges” interchangeably with “costs,” referring to, inter
alia: (1) “the estimated charge for raw materials,” (2)
“[i]nvestment charges,” (3) “interest charges,” and (4)
“overhead charges.” J.A. 1955–56 (emphases added); see
also J.A. 1964 (a letter from Standard Oil to the PAW
stating “this proposed additional charge for tank car or
tank truck shipping reflects quite accurately the addi-
tional cost to Seller and its Suppliers of tank car or tank
truck shipping as compared with barge and tanker ship-
ping”) (emphases added). 10 This usage confirms that the
parties intended the new or additional charges provision
to extend to Government-imposed costs, such as CERCLA
liability.
The context in which the contracts were formed simp-
ly further confirms that the new or additional charges
provision requires reimbursement of the Oil Companies’
CERCLA costs. See Metric Constr., Inc. v. Nat’l Aero-
nautics & Space Admin., 169 F.3d 747, 752 (Fed. Cir.
1999) (quoting Hol-Gar Mfg. Corp. v. United States, 351
F.2d 972, 975 (Ct. Cl. 1965)) (“‘[T]he language of a con-
10 The United States objects to this and other mate-
rial located at Joint Appendix pages 914 to 2003 and 2011
to 2026, which was not before the trial court in this case.
Although the objected-to material is helpful for context
and background, this court nowhere accords it determina-
tive weight.
26 SHELL OIL COMPANY v. US
tract must be given that meaning that would be derived
from the contract by a reasonably intelligent person
acquainted with the contemporaneous circumstances.’”).
World War II and the stark necessity of increased avgas
production are the circumstances surrounding the for-
mation of the avgas contracts. The Government was in a
position of near-complete authority over existing refiner-
ies, but needed the Oil Companies’ cooperation to con-
struct new production facilities to meet the extraordinary
demand for avgas. The Oil Companies agreed to the
avgas contracts’ low profits in return for the Govern-
ment’s assumption of certain risks outside of the Oil
Companies’ control. See supra Background Part I. The
CERCLA charges in this case are one such risk. The Oil
Companies could not have contemplated such CERCLA
charges at the time they entered into the contracts; in-
deed, dumping the acid waste at the McColl site was
expressly permitted. See J.A. 605 ¶ 492 (Eli McColl had a
permit from the City of Fullerton to dump the waste.).
These circumstances confirm that the new or additional
charges provision must be interpreted to require reim-
bursement for the Oil Companies’ CERCLA costs arising
from avgas production. The Court of Federal Claims’
holding to the contrary is accordingly reversed.
II. The Court of Federal Claims Erred in Holding the Oil
Companies’ Contractual Claims Were Released
The Court of Federal Claims denied the Oil Compa-
nies’ reimbursement claims for the additional reason that
they were released when the avgas contracts were termi-
nated and settled in the mid-to-late 1940s. The parties
stipulated in the CERCLA litigation that the avgas con-
tracts “were terminated in 1945 or, in the case of [ARCO],
shortly thereafter. Matters relating to profits from these
contracts, termination costs, and all other issues concern-
ing these contracts were settled between the parties in
the late 1940s.” J.A. 640.
SHELL OIL COMPANY v. US 27
The Court of Federal Claims relied on DuPont and
Ford Motor Co. in reasoning that the Oil Companies’
claims did not survive the termination and settlement of
the underlying avgas contracts. In both DuPont and Ford
Motor Co., this court held there was no release of the
contractor’s indemnification claim because the agreement
terminating the underlying World War II contract ex-
pressly reserved future indemnification claims. DuPont,
365 F.3d at 1370; Ford Motor Co., 378 F.3d at 1318. In
this case, neither party could locate the Oil Companies’
termination agreements, and the Court of Federal Claims
reasoned that “the Oil Companies have offered no evi-
dence or argument that this ‘termination’ and ‘set-
tle[ment]’ differed in any material way from a general
release.” Shell Remand Decision, 108 Fed. Cl. at 436.
On appeal, the Oil Companies argue that “[t]he stipu-
lation says nothing at all about whether the Oil Compa-
nies executed a release (general or otherwise) as part of
[the] settlement, or if they did execute such a release,
whether it encompassed or excepted future reimburse-
ment claims for ‘taxes, fees, or charges.’” Appellants’ Br.
34. The Oil Companies contend this uncertainty is fatal
to the trial court’s finding of a general release, because
the Government (as the defendant) bore “‘the burden of
proving the validity and applicability of a release,’” and
failed to meet that burden. Id. at 35 (quoting A.R.S. Inc.
v. United States, 157 Ct. Cl. 71, 76 (1962)).
The Government responds that the new or additional
charges provision did not “remain in force after the expi-
ration or termination of the contracts,” and that “[s]uch
permanence should not be inferred.” Appellee’s Br. 23; see
also id. (quoting Consumers Ice Co. v. United States, 475
F.2d 1161, 1166–67 (Ct. Cl. 1973) (describing “a judicial
reluctance to lock parties into a given set of rights and
obligations for long or indefinite periods without some
clear indication that this was actually intended by the
parties”)). The parties’ stipulation is adequate to prove
28 SHELL OIL COMPANY v. US
release, the Government contends, because the stipula-
tion “admits . . . that ‘all other issues concerning these
contracts were settled between the parties in the late
1940s.’” Appellee’s Br. 43 (quoting J.A. 640 ¶ 609).
The Court of Federal Claims erred in holding the
Government met its burden to prove release. “Once the
facts of breach are established, the defendant has the
burden of pleading and proving any affirmative defense
that legally excuses performance.” Stockton E. Water
Dist. v. United States, 583 F.3d 1344, 1360 (Fed. Cir.
2009) (internal quotation marks and citation omitted); see
also R. Ct. Fed. Cl. 8(c)(1) (“In responding to a pleading, a
party must affirmatively state any avoidance or affirma-
tive defense, including . . . release.”). “[T]he burden of
proving the validity and applicability of release is on the
defendant.” A.R.S. Inc., 157 Ct. Cl. at 76. The two facts
relied upon by the Government—termination and settle-
ment of all claims—do not satisfy its burden to prove
release of the Oil Companies’ claims for CERCLA indem-
nification.
The Oil Companies brought these claims under the
CSA, which is meant to ensure “speedy and equitable
final settlement of claims under terminated war con-
tracts.” 41 U.S.C. § 101 (2006) (emphasis added), repealed
and replaced by An Act To Enact Certain Laws Relating
to Public Contracts, Pub. L. No. 111-350, § 6, 124 Stat.
3677, 3854 (Jan. 4, 2011); see also id. § 103(h)
(“‘[T]ermination claim’ means any . . . claim under a
terminated war contract . . . .”). The CSA allows post-
termination indemnification claims, such as the Oil
Companies’ claims on the terminated avgas contracts, “‘so
long as the expenditure arose on account of the contrac-
tor’s performance under the contract, and the expenditure
is not otherwise excluded from payment by other provi-
sions.’” Ford Motor Co., 378 F.3d at 1320 (quoting Hou-
daille Indus., Inc. v. United States, 151 F. Supp. 298, 312
(Ct. Cl. 1957)); see also id. at 1319 (“[T]he CSA explicitly
SHELL OIL COMPANY v. US 29
contemplated later-arising claims, and set no period of
limitations.”).
Houdaille, for example, involved a World War II pro-
curement contract in which the Government agreed to
reimburse the contractor for, inter alia, its reasonable
costs and expenditures resulting from contract termina-
tion. Houdaille, 151 F. Supp. at 300. The contract was
terminated in 1946, and the contractor “paid $420,212.46
more in [unemployment insurance] contributions because
of its experience under [the contract] than it would have if
its contribution rate was based only on the operations of
its three normal peacetime plants.” Id. at 305. The
Houdaille court rejected the Government’s argument that
“there [was] no authority” to reimburse costs “after the
contract had expired,” finding the expenses were reim-
bursable because they “arose on account of plaintiff’s
operation under the contract.” Id. at 312. The court also
held the contractor’s indemnification claim was not
barred by release, id. at 310, making it clear that a con-
tract termination is not the same as a general release. In
this case, the CERCLA costs for which the Oil Companies
now seek indemnification arose, at least in part, from the
production of avgas pursuant to the avgas contracts. The
fact that the costs were not imposed until after the con-
tracts were terminated does not bar the Oil Companies’
CSA claims.
The Government nonetheless argues that the parties’
settlement of all issues concerning the avgas contracts
amounts to a general release of claims for reimbursement.
It contends this case is distinguishable from DuPont and
Ford Motor Co., where the Termination Agreements
expressly preserved the contractor’s indemnification
claims. See DuPont, 365 F.3d at 1373–74 (The Termina-
tion Supplement preserved all indemnification claims and
“apparently included no termination or expiration date.”);
Ford Motor Co., 378 F.3d at 1319 (“The Termination
Agreement . . . includes all claims ‘not now known’ arising
30 SHELL OIL COMPANY v. US
from performance of the War Contract.”). The Govern-
ment maintains there is no indication that the settlement
agreements in this case include any analogous promises
to allow future indemnification claims. Just as the con-
tract in DuPont was “no longer in effect, having been
supplanted by the Termination Supplement,” DuPont, 365
F.3d at 1373, the Government maintains the avgas con-
tracts in this case are “no longer in effect,” having been
supplanted by the settlement agreements of “all other
issues.” Appellee’s Br. 42–44. According to the Govern-
ment, the terminated and settled avgas contracts cannot
support any new indemnification claim; such a claim
would have to be based on the settlement agreements,
which are not in the record.
The parties’ stipulation that “all other issues” were
settled does not satisfy the Government’s burden to prove
a general release. See J.A. 640. A settlement between
two parties may resolve all then-existing issues without
discharging any and all obligations between the parties.
See Restatement (Second) of Contracts § 284(1) (“A re-
lease is a writing providing that a duty owed to the maker
of the release is discharged immediately or on the occur-
rence of a condition.”). In Ford Motor Co., for example, all
issues had been settled, but not all rights were released;
the parties agreed to allow future indemnification claims
under the contract. 378 F.3d at 1319–20. It is the Gov-
ernment’s burden to prove the settlement agreements
released future claims under the avgas contracts, A.R.S.
Inc., 157 Ct. Cl. at 76, and the Government has failed to
establish the content of those settlement agreements.
The Government has not shown that the termination and
settlement in this case amount to a general release of the
Oil Companies’ claims for reimbursement of new or addi-
tional charges. The Court of Federal Claims therefore
erred in holding the Oil Companies’ contract claims were
released.
SHELL OIL COMPANY v. US 31
III. The Court of Federal Claims Erred in Holding the
Anti-Deficiency Act Barred the Oil Companies’ Indemnifi-
cation Claims
The final independent basis for the Court of Federal
Claims’ grant of summary judgment in favor of the Gov-
ernment was that any indemnification promise broad
enough to encompass future CERCLA liability was an
unenforceable violation of the Anti-Deficiency Act
(“ADA”).
The ADA provides, in relevant part:
No executive department or other Government es-
tablishment of the United States shall expend, in
any one fiscal year, any sum in excess of appro-
priations made by Congress for that fiscal year, or
involve the Government in any contract or other
obligation for the future payment of money in ex-
cess of such appropriations unless such contract or
obligation is authorized by law.
31 U.S.C. § 665 (1940) (now revised and codified at 31
U.S.C. § 1341) (emphasis added). “[A]bsent an express
provision in an appropriation for reimbursement ade-
quate to make such payment, [the ADA] proscribes in-
demnification on the grounds that it would constitute the
obligation of funds not yet appropriated.” Cal.-Pac. Utils.
Co. v. United States, 194 Ct. Cl. 703, 715 (1971). In Chase
v. United States, for example, the plaintiff sought damag-
es under a building lease entered into with the Postmas-
ter General. 155 U.S. 489, 490 (1894). The Supreme
Court held the Postmaster General was authorized to
enter into contracts on behalf of the United States only if
“authorized by law, or . . . under an appropriation ade-
quate to its fulfil[l]ment.” Id. at 502. Because “[t]here is
no claim that the lease in question was made under any
appropriation whatever, . . . the only inquiry is whether
the contract of lease was ‘authorized by law,’ within the
32 SHELL OIL COMPANY v. US
meaning of the [ADA].” Id. (holding the contract was not
authorized by law).
The inquiry at the Court of Federal Claims likewise
centered on whether the indemnification provisions at
issue were “authorized by law.” Before this court, howev-
er, the parties and amicus disagree on a preliminary
question: whether the DSC was subject to the ADA in the
first place. The Oil Companies argue that “DSC’s con-
tracts were not funded through appropriations,” and
contend the ADA thus does not apply. Appellants’ Br. 39
(citing GAO, Reference Manual of Government Corpora-
tions, S. Doc. No. 86 (1945); J.A. 420 (DSC “did not receive
direct annual appropriations.”)). Amicus American Fuel
& Petrochemical Manufacturers (“AFPM”) elaborates that
the DSC “was funded through borrowings and retained
earnings, not through Congressional appropriations and
had no borrowing limit.”11 AFPM Br. 20. The Oil Com-
panies and AFPM therefore contend that the new or
additional charges provision in the avgas contracts is not
subject to the ADA.
This preliminary question—whether the DSC is sub-
ject to the ADA—was not raised before the Court of Fed-
11 The RFC, of which the DSC was a subsidiary, was
capitalized with $500 million in capital stock subscribed
by the United States, but was otherwise funded primarily
by debt and retained earnings. J.A. 1429; see also 15
U.S.C. § 602 (1940). The RFC was authorized to charter a
subsidiary “on such terms and conditions as [the RFC]
may determine.” 15 U.S.C. § 606b (1940). In August
1940, the RFC chartered the DSC, vesting it with authori-
ty “to borrow money and issue its secured or unsecured
obligations therefore.” J.A. 1447–48; see also J.A. 1440,
1443–44 (DSC borrowed over $6 billion and earned
enough to repay approximately $4.8 billion back after the
war.).
SHELL OIL COMPANY v. US 33
eral Claims, where both parties assumed the applicability
of the ADA and only disputed whether the indemnifica-
tion provision was authorized pursuant to the ADA. See
Shell Remand Decision, 108 Fed. Cl. at 438. By failing to
raise this issue below, the Oil Companies waived their
argument that the ADA is inapplicable to the DSC. See
Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1263 (Fed.
Cir. 2005). Like the Court of Federal Claims, this court
assumes the ADA applies and limits the inquiry to
whether the relevant indemnification provision was
“authorized by law.”
The Oil Companies argued before the trial court that
the ADA did not bar recovery, because the new or addi-
tional charges provision was “authorized by” the First
War Powers Act and implementing Executive Orders
9024 and 9001. The Court of Federal Claims held “that
none of these sources provided the requisite ADA waiver
that would have allowed the Government to indemnify
the Oil Companies.” 12 Shell Remand Decision, 108 Fed.
Cl. at 437. On appeal, the Oil Companies contend the
Court of Federal Claims wrongly required them to prove
an ADA “waiver” when the ADA only requires authoriza-
tion for the relevant provision. They maintain the author-
ity granted to the President in the First War Powers Act,
and delegated to the DSC through implementing Execu-
tive Orders 9024 and 9001, authorized the avgas con-
tracts’ new or additional charges provision.
Both parties agree that Title II of the First War Pow-
ers Act, enacted in 1941, granted the President the power
12 Before the Court of Federal Claims, the Oil Com-
panies also contended that the requisite authorization
was provided by the National Defense Act of 1916 and a
June 1941 amendment to the charter of the DSC, Shell
Remand Decision, 108 Fed. Cl. at 437, but do not raise
these arguments on appeal.
34 SHELL OIL COMPANY v. US
to “authorize any department or agency” to enter into
contracts that would otherwise violate the ADA, “whenev-
er he deems such action would facilitate the prosecution of
the war.” Pub. L. No. 77-354, ch. 593, § 201, 55 Stat. 838,
839 (1941). The parties disagree, however, whether the
President delegated this authority to the DSC in Execu-
tive Orders 9024 and 9001. In Executive Order 9024,
President Roosevelt invoked the “authority vested in
[him] by the Constitution and statutes of the United
States,” to establish the WPB and grant the WPB Chair-
man the power to, inter alia, “[d]etermine the policies,
plans, procedures, and methods of the several Federal
departments, establishments, and agencies in respect to
war procurement and production, including purchasing,
contracting, specifications, and construction.” 7 Fed. Reg.
329, 330 ¶ 2(b) (Jan. 17, 1942). In a February 13, 1942,
letter, the WPB Chairman then delegated to the OPC the
authority “to determine . . . the price at which [avgas] is to
be purchased, the capacity of the particular refiner to
perform and the technical details of the particular con-
tract,” and delegated to the DSC the authority “to deter-
mine . . . the other terms and the form of such [avgas]
contracts.” J.A. 400.
By invoking authority from the “statutes of the Unit-
ed States,” Executive Order 9024 delegates to the WPB
the authority under the First War Powers Act to author-
ize indemnification provisions otherwise barred by the
ADA. Moreover, the Chairman’s letter to the DSC dele-
gating the authority to determine “the other terms and
the form of such [avgas] contracts” transfers that authori-
ty to the DSC. Contrary to the Government’s objection
that Executive Order 9024 does not mention contracting,
it clearly directs the WPB Chairman to direct “the poli-
cies, plans, procedures, and methods” with respect “to war
procurement and production, including purchasing, con-
tracting, specifications, and construction.” This delega-
SHELL OIL COMPANY v. US 35
tion is sufficient to authorize the indemnification provi-
sions at issue under the ADA.
Indeed, the DuPont court found that a similar provi-
sion in the CSA was sufficient to authorize otherwise
prohibited indemnification agreements. The relevant
portion of the CSA stated:
Each contracting agency shall have authori-
ty, notwithstanding any provisions of law other
than contained in this chapter, (1) to make any
contract necessary and appropriate to carry out
the provisions of this chapter; (2) to amend by
agreement any existing contract, either before or
after notice of its termination, on such terms and
to such extent as it deems necessary and appro-
priate to carry out the provisions of this chapter;
and (3) in settling any termination claim, to agree
to assume, or indemnify the war contractor
against, any claims by any person in connection
with such termination claims or settlement.
41 U.S.C. § 120(a) (1946) (emphasis added). The CSA did
not expressly mention the ADA, but this court nonethe-
less reasoned that the “bestowal of contracting authority
‘notwithstanding any provisions of law other than con-
tained in this chapter’” was sufficient to authorize indem-
nification pursuant to the ADA. DuPont, 365 F.3d at
1375. Similarly, although Executive Order 9024 does not
expressly state that the Chairman of the WPB (and, in
turn, the DSC) can expend unappropriated funds other-
wise in violation of the ADA, it is a broad delegation of
contracting authority that impliedly invokes the Presi-
dent’s authority under the First War Powers Act to by-
pass the ADA’s restrictions. The Court of Federal Claims
therefore erred in holding that the ADA rendered the
indemnification provision unenforceable.
The Government nevertheless argues the DSC was at
all times subject to prior Executive Order 8512, which
36 SHELL OIL COMPANY v. US
stated: “No agency shall make expenditures or involve the
Government in any contract or other obligation for the
future payment of money in excess of the amount current-
ly available therefor under the apportionments so ap-
proved or revised.” Appellee’s Br. 46 (quoting 5 Fed. Reg.
2,849 (Aug. 15, 1940)) (internal quotation marks omitted).
Although Executive Order 9024 provides that all prior
“conflicting” Executive Orders “are hereby superseded,”
the Government argues the terms of Executive Order
9024 do not conflict with Executive Order 8512, whose
prohibition thus remained in effect. To the contrary,
however, Executive Order 9024 delegates the President’s
general contracting authority to the WPB “[b]y virtue of
the authority vested in [the President] by the . . . statutes
of the United States.” Such statutes include the First
War Powers Act’s authority to enter into contracts that
would otherwise violate the ADA. Delegating authority to
bypass the ADA conflicts with Executive Order 8512,
which prohibited contracts in excess of then-current
appropriations. Executive Order 8512 thus does not
control in this case.
Because the new or additional charges provision was
authorized by the First War Powers Act, as delegated to
the DSC through Executive Order 9024 and the WPB
Chairman’s letter, there is no need to consider whether
the President also delegated such authority under Execu-
tive Order 9001. The Court of Federal Claims’ holding
that the ADA prohibited reimbursement of new or addi-
tional charges is therefore reversed.
Each of the three independent bases for denying the
Oil Companies’ reimbursement claims has been reversed,
making it appropriate to enter summary judgment in
favor of the Oil Companies with respect to breach of
contract liability. The sole remaining issue is whether the
Court of Federal Claims correctly determined that genu-
ine disputed facts prevented granting summary judgment
with respect to damages.
SHELL OIL COMPANY v. US 37
IV. The Court of Federal Claims Correctly Held That
Disputed Facts Prevent Granting the Oil Companies’
Motion for Summary Judgment on Damages
The Court of Federal Claims found there were “factu-
al questions” regarding “what portion of the non-benzol
waste [(i.e., the spent alkylation acid and the non-benzol
acid sludge)] was created ‘by reason of’ the avgas pro-
gram.” Shell Remand Decision, 108 Fed. Cl. at 448. On
appeal, the Oil Companies argue this court should award
100% of their CERCLA costs on the ground that the
Government is collaterally estopped from arguing that
anything less than 100% of the non-benzol acid waste was
due to the avgas contracts.
The Oil Companies rely on the decision of the district
court in the CERCLA litigation, which found “that 100
percent of the non-benzol waste at the McColl Site is
attributable to the avgas program.” Shell II, 13 F. Supp.
2d at 1026. The Oil Companies argue the district court’s
attribution “finding is binding on the Government as a
matter of issue preclusion.” Appellants’ Br. 56 (quoting
United States v. Mendoza, 464 U.S. 154, 158 (1984)
(“[O]nce a court has decided an issue of fact or law neces-
sary to its judgment, that decision is conclusive in a
subsequent suit based on a different cause of action
involving a party to the prior litigation.”)). The district
court’s finding was not final, however, but rather was
reversed by the Ninth Circuit. Shell III, 294 F.3d at1048–49. The Ninth Circuit instead held the Government
was not an “arranger” for the non-benzol waste, and thus
did not reach the question of how much non-benzol waste
was attributable to the avgas program. Id. The final
decision in Shell III thus did not resolve the attribution
issue and cannot serve as the basis for issue preclusion.
See Laguna Hermosa Corp. v. United States, 671 F.3d
1284, 1288 (Fed. Cir. 2012) (issue preclusion requires,
inter alia, that “resolution of the issue was essential to a
38 SHELL OIL COMPANY v. US
final judgment in the first action”) (internal quotation
marks and citations omitted).
The Oil Companies contend the district court’s non-
benzol attribution analysis was necessary to the Ninth
Circuit’s holding because the Ninth Circuit affirmed the
district court’s apportionment analysis with respect to the
benzol waste. This argument confuses the district court’s
attribution holding (based on the factual question of how
much acid waste was caused by the avgas program) with
its apportionment holding. In the latter, the district court
identified multiple reasons why 100% of the waste for
which the Government was an “arranger” (both the benzol
and non-benzol waste) should be equitably apportioned to
the Government: (1) it would properly place the costs of
war on society as a whole, and (2) it would reflect the
Government’s role in limiting reprocessing facilities and
access to tank cars. Shell II, 13 F. Supp. 2d at 1027. The
Ninth Circuit affirmed this apportionment analysis with
respect to the benzol waste.
This equitable apportionment holding is distinct from
the issue of attribution relevant in this case: how much of
the acid waste dumped at the McColl site was “by reason
of” the avgas program. The Ninth Circuit did not rely on
or incorporate the district court’s attribution holding with
respect to the non-benzol waste, and instead stated “[t]he
undisputed facts indicate that the Oil Companies . . .
dumped acid waste from operations other than avgas
production at the McColl site.” Shell III, 294 F.3d at 1062(emphasis added). In short, the prior CERCLA litigation
does not preclude the Government from challenging the
amount of acid waste attributable to the avgas contracts.
Absent collateral estoppel, the Oil Companies do not
contest the trial court’s finding of a genuine dispute
regarding how much of the acid waste at the McColl site
resulted from the avgas contracts, nor does this court
discern any error. See, e.g., J.A. 569 (“Kerosene and
SHELL OIL COMPANY v. US 39
lubricating oils were also acid treated” and “produced acid
sludge.”); J.A. 572 (The McColl site “contains acid sludge
resulting from the treatment of civilian and military
petroleum products.”). The case is remanded for the
Court of Federal Claims to determine how much acid
waste at the McColl site was “by reason of” the avgas
contracts.
CONCLUSION
For the foregoing reasons, this court reverses the
Court of Federal Claims’ grant of summary judgment
with respect to breach of contract liability, and remands
for a trial on damages.
REVERSED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
SHELL OIL COMPANY, ATLANTIC RICHFIELD
COMPANY, TEXACO, INC., AND UNION OIL
COMPANY OF CALIFORNIA,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5051
______________________
Appeal from the United States Court of Federal
Claims in Consolidated Nos. 06-CV-0141 and 06-CV-1411,
Judge Thomas C. Wheeler.
______________________
REYNA, Circuit Judge, dissenting.
The majority concludes that a “Taxes” clause in sev-
eral contracts for high-octane aviation gas (“avgas”)
should be broadly interpreted to require the United States
to indemnify the Oil Companies for a CERCLA judgment
covering restoration efforts of the McColl acid waste site
more than fifty years after the completion of the con-
tracts. I do not interpret the “Taxes” clause as a general
indemnification clause that captures production-related
costs. For this and the other reasons set forth below, I
respectfully dissent.
2 SHELL OIL COMPANY v. US
I.
This appeal arises following the Oil Companies’ fail-
ure to recover the McColl site clean-up costs through the
CERCLA litigation that took place in California. The
CERCLA regime allows a party that is financially respon-
sible for the clean-up costs of environmental contamina-
tion to seek contribution from other responsible parties.
42 U.S.C. § 9613(f)(1). District courts thus have broad
discretion to resolve contribution claims “using such
equitable factors as [they] determine[] are appropriate.”
Id.; see also Boeing Co. v. Cascade Corp., 207 F.3d 1177,
1187 (9th Cir. 2000) (noting that CERCLA “gives district
courts discretion to decide what factors ought to be con-
sidered, as well as the duty to allocate costs according to
those factors”). After failing to achieve a satisfactory
outcome under CERCLA’s equitable considerations, the
Oil Companies now seek recovery through a different
avenue—a breach of contract action. In doing so, they
breach the four corners of their avgas contracts by asking
this court to interpret the “Taxes” clause as a catch-all
indemnification provision. Such an interpretation, in my
view, has no basis in the plain language of the clause or
the overall scope of the contract. I would therefore affirm
the decision of the Court of Federal Claims and hold that
the “Taxes” clause was intended by the parties to be
nothing more than a price-adjustment mechanism cover-
ing additional or unanticipated tax-related burdens
assessed by reason of avgas production. 1
“Contract interpretation is a question of law, which
[the court] review[s] without deference.” 1st Home Liqui-
1 I do not interpret the “Taxes” clause as allowing
the Oil Companies to recover their CERCLA costs, I do
not address the Court of Federal Claims’s conclusion that
recovery is also precluded by general release and the Anti-
Deficiency Act.
SHELL OIL COMPANY v. US 3
dating Trust v. United States, 581 F.3d 1350, 1355 (Fed.
Cir. 2009); Teg-Paradigm Envtl., lnc. v. United States, 465
F.3d 1329, 1336 (Fed. Cir. 2006). “In the case of con-
tracts, the avowed purpose and primary function of the
court is the ascertainment of the intention of the parties.”
Alvin Ltd. v. U.S. Postal Serv., 816 F.2d 1562, 1565 (Fed.
Cir. 1987). Contract interpretation begins with the lan-
guage of the written agreement, which must be given
“[its] ordinary meaning unless the parties mutually
intended and agreed to an alternative meaning.” Harris
v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir.
1998). We may not resort to extrinsic evidence “to create
an ambiguity where a contract was not reasonably sus-
ceptible of differing interpretations at the time of con-
tracting.” Metric Constructors, Inc. v. Nat’l Aeronautics &
Space Admin., 169 F.3d 747, 752 (Fed. Cir. 1999); see also
Coast Fed. Bank, FSB v. United States, 323 F.3d 1035,
1038 (Fed. Cir. 2004) (en banc).
Under the “Taxes” clause of the avgas contracts, the
Government agreed to reimburse the Oil Companies for
“any new or additional taxes, fees, or charges” that may
be imposed “by reason of” the production, sale, and deliv-
ery of avgas. Shell Oil Company’s contract, dated April
10, 1942, is representative of all the avgas contracts at
issue here and provides:
XII. Taxes
a) Buyer shall pay in addition to the prices as
established in Sections IV and V hereof,
any new or additional taxes, fees, or charg-
es, other than income, excess profits, or
corporate franchise taxes, which Seller may
be required by any municipal, state, or fed-
eral law in the United States or any foreign
country to collect or pay by reason of the
production, manufacture, sale or delivery of
the commodities delivered hereunder.
4 SHELL OIL COMPANY v. US
Buyer shall also pay any such taxes on
crude petroleum, or the transportation
thereof, to the extent such taxes result in
increased cost of the commodities delivered
hereunder not compensated for by Section
V hereof.
J.A. 111-12 (Shell Oil Co. Contract, Apr. 10, 1942) (em-
phasis added).
The majority’s conclusion that CERCLA liability is
covered by this clause hinges on an isolated interpretation
of the word “charges.” The majority engages in a lengthy
discussion of the plain meaning of “charges” and con-
cludes that it is synonymous with “costs.” Maj. Op. at 17-
19. The majority then proceeds to hold that the “Taxes”
clause requires the Government to reimburse the Oil
Companies for costs of any and all type, regardless of how
they were incurred, as long as those costs arise “by reason
of” the production and delivery of avgas.
Such an interpretation ignores the contractual char-
acter and import of the “Taxes” clause. When read as a
whole, the contract signals that the parties, at the time
they entered into the contract, intended the “Taxes”
clause to be read as a price-adjustment mechanism cover-
ing unexpected tax-related burdens. First, the clause is
titled “Taxes.” Second, the clause uses the term “such
taxes” several times to refer back to the broader category
of “taxes, fees, or charges.” Third, the specific exclusions
from “taxes, fees, or charges” are all income and related
taxes, including “income, excess profits, [and] corporate
franchise taxes.” Finally, the clause provides that the
payment of “new or additional taxes, fees, or charges” will
be in addition to the prices established in the “Price and
Payment” (Section IV) and “Price Escalation” (V) clauses
of the contract. The term “charges” should thus be inter-
preted consistently and in harmony with the broader
SHELL OIL COMPANY v. US 5
operation of the “Taxes” clause as a price-adjustment
mechanism.
The majority summarily dismisses these textual sig-
nals in favor of an isolated and overly-broad interpreta-
tion of the singular term “charges” to conclude that “[t]he
plain language of the new or additional charges provision”
must encompass CERCLA liability. Maj. Op. at 19. In
doing so, the majority ignores the trial court’s use of the
noscitur a sociis canon of interpretation, which “is just an
erudite (or some would say antiquated) way of saying
what common sense tells us to be true: ‘[A] word is
known by the company it keeps.’” James v. United States,
550 U.S. 192, 222 (2007) (Scalia, J., dissenting) (alteration
in original) (quoting Jarecki v. G.D. Searle & Co., 367
U.S. 303, 307 (1961)). Indeed, contract terms must be
construed, not in isolation, but as a whole and in a way
that gives effect to the surrounding context. NVT Techs.,
Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)
(noting that a contract must “be considered as a whole
and interpreted so as to harmonize and give reasonable
meaning to all of its parts”); Metric Constructors, 169 F.3d
at 752 (“Before arriving at a legal reading of a contract
provision, a court must consider the context and inten-
tions of the parties.”). “The context and subject matter of
a contract may indicate that an ordinary word or phrase
has an unusual meaning in a given sentence.” 11 Richard
A. Lord, Williston on Contracts § 32:6 (4th ed. 1999 &
Supp. 2009). “[I]t is questionable whether a word has a
meaning at all when divorced from the circumstances in
which it is used.” E. Allen Farnsworth, Contracts 454
(4th ed. 2004). Here, the majority’s interpretation ignores
the plain meaning of the text, fails to give harmony to the
contracts as a whole, and is overall unreasonable.
For example, the majority dismisses, in a footnote,
any reliance on the title of the clause (“Taxes”) as evi-
dence of the clause’s fairly narrow tax-related meaning.
Maj. Op. at 20 n.9. The majority notes that the Supreme
6 SHELL OIL COMPANY v. US
Court tends to “place[] less weight on” captions, headings
and titles when construing statutory provisions. Id.
(quoting Lawson v. FMR LLC, No. 12-3, 2014 WL 813701,
at *10 (U.S. Mar. 4, 2014)). This principle, which is often
used when “the [statutory] text is complicated and prolif-
ic,” nevertheless recognizes that a heading can be a help-
ful “‘short-hand reference to the general subject matter’ of
the provision.” Lawson, 2014 WL 813701, at *10 (quoting
Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528
(1947)). Hence, Supreme Court precedent supports a
finding that the parties intended for the “general subject
matter” of this clause to cover “Taxes” and tax-related
items.
The majority rejects the Government’s comparison of
the “Taxes” clause to the terms of other contemporaneous
contracts as an improper reliance on extrinsic evidence in
the absence of an “established ambiguity.” Maj. Op. at 24.
At the same time, the majority itself informs its broad
interpretation of the “Taxes” clause by heavily relying on
extrinsic evidence. As the majority notes:
World War II and the stark necessity of increased
avgas production are the circumstances surround-
ing the formation of the avgas contracts. The
Government was in a position of near-complete
authority over existing refineries, but needed the
Oil Companies’ cooperation to construct new pro-
duction facilities to meet the extraordinary de-
mand for avgas.
Maj. Op. at 26 (emphasis original). The majority con-
cludes that “[t]hese circumstances confirm that the new or
additional charges provision must be interpreted to
require reimbursement for the Oil Companies’ CERCLA
costs arising from avgas production.” Id. The majority
thus justifies its broad interpretation of the “Taxes”
clause not on the language of the clause itself but on a
weighing of the equities in light of the wartime circum-
SHELL OIL COMPANY v. US 7
stances, subject matter not in the record before us and
certainly not reflected by the terms of the contract. I
believe that reliance on unsupported historical and social
anecdotes should not trump the plain meaning of the
contract terms and, in this case, transform a straightfor-
ward “Taxes” clause into a catch-all indemnification
provision. See, e.g., City of Oxnard v. United States, 851
F.2d 344, 347 (Fed. Cir. 1988) (noting that the contract
language is the best evidence of the parties’ intent and
should take precedence over any “subjective intent of one
of the parties, if contrary to the unambiguous and reason-
able text of the written contract”).
II.
Even if the “Taxes” clause could be interpreted to en-
compass certain non-tax-related costs, the majority does
not adequately explain why the clause should be extended
to indemnify CERCLA liability. As we have previously
noted:
In order for a pre-CERCLA indemnification clause
to cover CERCLA liability, courts have held that
the clause must be either [1] specific enough to in-
clude CERCLA liability or [2] general enough to
include any and all environmental liability which
would, naturally, include subsequent CERCLA
claims.
E.I. Du Pont de Nemours & Co. v. United States, 365 F.3d
1367, 1373 (Fed. Cir. 2004) (quoting Elf Atochem N. Am.
v. United States, 866 F. Supp. 868, 870 (E.D. Pa. 1994)).
As we noted in DuPont, “CERCLA evolved from the
doctrine of common law nuisance” and is thus similar to
tort-based liability claims. DuPont, 365 F.3d at 1373.
CERCLA gives the President broad power to direct the
Government to clean up a hazardous waste site itself or to
command the responsible parties to do so. See Cooper
Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 160 (2004).
Responsible parties may thus satisfy their CERCLA
8 SHELL OIL COMPANY v. US
liability by means other than cash payments to govern-
mental entities. Had the Oil Companies self-performed
the clean-up efforts at the McColl Site, they would have
even less of a basis to argue that the clean-up costs are
encompassed by the “Taxes” clause because the clause
covers only “charges” the contractor was required by a
government entity “to collect or pay.”
Here, nothing in the plain language of the avgas con-
tracts indicates that the parties intended for the “Taxes”
clause to “allocate [generally] all possible liabilities”
among themselves, much less to allocate specifically the
risks of environmental liability. Id. The “Taxes” clause is
devoid of any language that resembles the broad indemni-
fication provisions considered by our decisions in DuPont
and Ford Motor Co. See DuPont. 365 F.3d at 1367; Ford
Motor Co. v. United States, 378 F.3d 1314, 1314 (Fed. Cir.
2004). In DuPont, we held that the Government’s agree-
ment “to hold [DuPont] harmless against any loss, ex-
pense . . . or damage . . . of any kind whatsoever” was
sufficient to include CERCLA liability. 365 F.3d at 1372(emphasis added). In Ford Motor Co., we similarly held
that CERCLA liability was covered by a provision requir-
ing reimbursement of all “allowable costs,” including “loss
or destruction of or damage to property as may arise out of
or in connection with the performance of the work under
this contract.” 378 F.3d at 1319 (emphasis added). No
such provision exists in this case.
Yet, the majority’s entire analysis rests on the conclu-
sion that a term requiring payment of “charges” or “costs”
is sufficient to require broad indemnification. Maj. Op. at
22. But the “Taxes” clause lacks any reference to concepts
indicating that the parties intended to enter into a broad
indemnity provision; terms like “loss,” “damage,” “liabil-
ity,” “destruction,” “indemnify,” “hold harmless,” and
“injury” are nowhere to be found. Although I agree with
the majority that no “special words” are required to give
effect to a promise of indemnification, id., that does not
SHELL OIL COMPANY v. US 9
mean that the contract can be devoid of any objective
indicia of the parties’ intent to generally allocate liability
between them. See, e.g., City of Oxnard, 851 F.2d at 347.
In my view, the avgas contracts lack any evidence of such
intent.
If history serves a purpose in this case, it is to show
that in the 1940s, as today, avgas production results in
byproducts, some of which are wastes. Waste created in
the production of petrochemicals represents a cost on the
producer, in this case the Oil Companies. That the con-
tracts are silent on who bears the cost related to the
production and disposal of avgas-related byproducts
indicates that the parties intended the cost to be borne by
the Oil Companies.
Indeed, the plaintiffs in this case are sophisticated
companies that “surely would know how to [negotiate
and] draft broad hold harmless indemnification clauses
extending in perpetuity if that were their intent,” even
during wartime. Shell Remand Decision, 108 Fed. Cl. at
425. Our previous decisions in DuPont and Ford Motor
Co. provide evidence of this very fact. The Oil Companies’
best opportunity to recover their clean-up costs from the
Government was through the CERCLA litigation in
California, and they should not now be allowed to recover
by fitting a square peg into a round hole. The majority
errs by interpreting a straightforward “Taxes” clause as a
catch-all indemnification provision. Therefore, I must
dissent.