Entergy Nuclear Fitzpatrick, LLC. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________
ENTERGY NUCLEAR FITZPATRICK, LLC,
ENTERGY NUCLEAR INDIAN POINT 3, LLC,
AND ENTERGY NUCLEAR OPERATIONS, INC.,
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2012-5059
__________________________
Appeal from the United States Court of Federal
Claims in case no. 03-CV-2627, Judge Edward J. Damich.
___________________________
Decided: April 2, 2013
___________________________
JAY E. SILBERG, Pillsbury Winthrop Shaw Pittman,
LLP, of McLean, Virginia, argued for the plaintiffs-
appellees. With him on the brief were ALEXANDER D.
TOMASZCZUK and EVAN D. WESSER. Of counsel on the
brief was L. JAGER SMITH, JR. Jager Smith LLC, of Jack-
son, Mississippi.
ANDREW P. AVERBACH, Senior Trial Counsel, Civil Di-
vision, United States Department of Justice, of Washing-
ton, DC, argued for defendant-appellant. With him on the
ENTERGY NUCLEAR v. US 2
brief were STUART F. DELERY, Acting Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and HAROLD D.
LESTER, JR., Assistant Director, MARIAN E. SULLIVAN,
Senior Trial Counsel, LISA L. DONAHUE, and SCOTT
SLATER, Trial Attorneys. Of counsel on the brief was
JANE K. TAYLOR, Office of General Counsel, United States
Department of Energy, of Washington, DC.
__________________________
Before RADER, Chief Judge, LOURIE and REYNA, Circuit
Judges.
RADER, Chief Judge.
This interlocutory appeal is the latest in a line of at-
tempts by the government to raise the “unavoidable
delays” defense in breach of contract actions stemming
from its failure to accept Spent Nuclear Fuel (SNF) from
the nation’s nuclear utilities. In a combination of two
decisions, the United States Court of Federal Claims
struck the government’s affirmative defense. Entergy
Nuclear FitzPatrick, LLC v. United States, 93 Fed. Cl.
739, 745–46 (2010) (Entergy FitzPatrick I); Entergy Nu-
clear FitzPatrick, LLC v. United States, 101 Fed. Cl. 464,
472–74 (2011) (Entergy FitzPatrick II). Because the Court
of Federal Claims correctly applied the Nebraska Public
Power rule, this court affirms the decision to strike the
government’s unavoidable delays defense.
I.
In early 1983, the Nuclear Waste Policy Act (NWPA)
established a comprehensive scheme to accept and dispose
of SNF and other high-level radioactive waste (HLW)
generated from the operation of nuclear power plants.
See 42 U.S.C. §§ 10101–10270. Addressing the “national
problem” of storage and disposal of these materials, the
Act imposed on the government the responsibility to
provide permanent disposal, while the costs of that dis-
3 ENTERGY NUCLEAR v. US
posal “should be the responsibility of the generators and
owners of such waste and spent fuel.” Id. § 10131(a). The
Act also made the utilities responsible to provide and pay
for SNF storage until the United States Department of
Energy (DOE) accepts the material “in accordance with
the provisions of this chapter.” Id. § 10131(a)(5).
The NWPA authorized the Secretary of Energy to en-
ter into contracts with nuclear utilities for the acceptance,
transportation, and disposal of SNF in return for payment
of fees by the utilities. Id. § 10222(a)(1). The Act set
specific requirements for these contracts, including when
DOE was to start accepting the SNF and other radioac-
tive waste. Section 302(a)(5) of the NWPA requires:
Contracts entered into under this section shall pro-
vide that—
(A) following commencement of operation of a re-
pository, the Secretary shall take title to the high-
level radioactive waste or spent nuclear fuel in-
volved as expeditiously as practicable upon the
request of the generator or owner of such waste or
spent fuel; and
(B) in return for the payment of fees established
by this section, the Secretary, beginning not later
than January 31, 1998, will dispose of the high-
level radioactive waste or spent nuclear fuel in-
volved as provided in this subchapter.
42 U.S.C. § 10222(a)(5) (emphasis added).
Later, DOE promulgated a regulation containing a
contract, known as the Standard Contract. Standard
Contract for Disposal of Spent Nuclear Fuel and/or High-
Level Radioactive Waste, 48 Fed. Reg. 16,590 (Apr. 18,
1983) (codified at 10 C.F.R. § 961.11). In compliance with
the statute, the Standard Contract states that DOE will
begin acceptance of SNF “not later than January 31,
ENTERGY NUCLEAR v. US 4
1998,” in exchange for fees paid by the utilities. 10 C.F.R.
§ 961.11, Art. II.
The NWPA also provided that the Nuclear Regulatory
Commission “shall not issue or renew a license” to any
nuclear utility unless the utility has entered into a con-
tract with DOE, or DOE certifies that good faith negotia-
tions to enter such a contact are ongoing. 42 U.S.C.
§ 10222(b)(1)(A). As this court noted in Maine Yankee,
the NWPA “effectively made entry into such contracts
mandatory for the utilities.” Maine Yankee Atomic Power
Co. v. United States, 225 F.3d 1336, 1337 (Fed. Cir. 2000)
(Maine Yankee). As a result, the nation’s nuclear utili-
ties—including the Power Authority of the State of New
York, the original owner of the Entergy nuclear power
stations at issue here—entered into contracts with DOE
and began making payments to DOE.
By 1994, DOE knew it would be unable to accept SNF
by the January 31, 1998 deadline. It initiated a notice-
and-comment proceeding to address its obligations under
the NWPA. DOE opened the proceeding with its “Notice
of Inquiry” on “Waste Acceptance Issues” stating its
“preliminary finding” that DOE had “no statutory obliga-
tion to accept [SNF] beginning in 1998 in the absence of
an operational repository or other facility constructed
under the [NWPA].” 59 Fed. Reg. 27,007, 27,008 (May 25,
1994); Indiana Michigan Power Co. v. Dep’t of Energy, 88
F.3d 1272, 1274 (D.C. Cir. 1996) (Indiana Michigan). In
April 1995, DOE issued its “Final Interpretation” that
acknowledged it would not begin accepting SNF by the
January 31, 1998 deadline and took the position that it
did not have an unconditional obligation to begin perfor-
mance on that date. 60 Fed. Reg. 21,793, 21,794–95 (May
3, 1995). A number of parties petitioned the United
States Court of Appeals for the District of Columbia for
review of the Final Interpretation.
5 ENTERGY NUCLEAR v. US
The D.C. Circuit held “that section 302(a)(5)(B) [of the
NWPA] creates an obligation in DOE, reciprocal to the
utilities’ obligation to pay, to start disposing of the SNF
no later than January 31, 1998.” Indiana Michigan, 88
F.3d at 1277. The D.C. Circuit found that DOE’s statuto-
ry obligation to meet the 1998 deadline was “without
qualification or condition.” Id. at 1276; Northern States
Power Co. v. Dep’t of Energy, 128 F.3d 754, 757 (D.C. Cir.
1997) (Northern States). Contrary to that ruling, and
without seeking rehearing or further review by the Su-
preme Court, DOE informed the utilities that it would not
begin accepting nuclear waste by the 1998 statutory
deadline. Northern States, 128 F.3d at 757. The utilities
returned to the D.C. Circuit seeking a writ of mandamus
compelling DOE to begin accepting SNF on time. While
that case was pending, DOE asserted that under the
Standard Contract’s “Unavoidable Delays” clause, it was
not obligated to provide a financial remedy for the delay
in performance. Id. Article IX of the Standard Contract
contains provisions for “Delays.” Section A covers “Una-
voidable Delays by Purchaser or DOE” and precludes a
party’s liability for “damages caused by failure to perform
its obligations hereunder, if such failure arises out of
causes beyond the control and without the fault or negli-
gence of the party failing to perform.” 10 C.F.R. § 961.11,
Art. IX(A).
The D.C. Circuit denied the specific writ requested by
the utilities. While acknowledging that DOE’s approach
toward contractual remedies was inconsistent with the
NWPA and the court’s holding in Indiana Michigan, the
D.C. Circuit found that the Standard Contract “provides a
potentially adequate remedy if DOE fails to fulfill its
obligations by the deadline.” Northern States, 128 F.3d at
756. In doing so, the D.C. Circuit rejected DOE’s argu-
ment that it was not obligated to accept nuclear waste
because its failure was “unavoidable” within the meaning
ENTERGY NUCLEAR v. US 6
of the unavoidable delays clause. Id. at 757. Reaffirming
that “the NWPA imposes an unconditional duty on DOE
to take the materials by 1998,” the D.C. Circuit issued a
writ of mandamus “precluding DOE from advancing any
construction of the Standard Contract that would excuse
its delinquency on the ground that it has not yet estab-
lished a permanent repository or an interim storage
program.” Id. at 756. Accordingly, our sister circuit
ordered DOE “to proceed with contractual remedies in a
manner consistent with NWPA’s command that it under-
take an unconditional obligation to begin disposal of the
SNF by January 31, 1998.” Id. at 760. The D.C. Circuit
also issued a post-judgment order clarifying the scope of
its Northern States decision. Northern States Power Co. v.
Dep’t of Energy, No. 97-1064, 1998 WL 276581 (D.C. Cir.
May 5, 1998). The court explained that it had “barred the
DOE from interpreting the [Standard] Contract as impos-
ing only a contingent disposal obligation; such an inter-
pretation, we ruled, would place the DOE in violation of
its statutory duties under the [NWPA], which required it
to undertake an unconditional obligation.” Id. at *1.
To date, the utilities continue to make payments to-
taling hundreds of millions of dollars each year, even
though DOE has yet to accept any nuclear waste. So far,
dozens of Standard Contract holders have sued the gov-
ernment in the Court of Federal Claims seeking damages
for DOE’s delay in accepting SNF. This court has ad-
dressed the Standard Contract on numerous occasions
and held that the government’s failure to begin accepting
SNF as of January 31, 1998 is a partial breach of the
contract. See, e.g., Maine Yankee, 225 F.3d at 1342–43.
This court, sitting en banc, addressed the D.C. Cir-
cuit’s Indiana Michigan and Northern States decisions in
2010. Nebraska Public Power Dist. v. United States, 590
F.3d 1357 (Fed. Cir. 2010) (en banc) (Nebraska Public
Power). In Nebraska Public Power, the government
7 ENTERGY NUCLEAR v. US
asserted the unavoidable delays defense against a claim
for damages resulting from DOE’s failure to accept nucle-
ar waste as of January 31, 1998. First, this court con-
firmed the D.C. Circuit’s jurisdiction over the utilities’
statutory claim arising under section 302 of the NWPA.
Id. at 1376. The D.C. Circuit’s mandamus order focused
on statutory interpretation and did not impermissibly
trespass upon the jurisdiction of the Court of Federal
Claims to determine the parties’ contractual rights. Id.
Accordingly, the D.C. Circuit’s mandamus order was
afforded res judicata effect. Id.
The Nebraska Public Power opinion characterized the
D.C. Circuit’s opinion as precluding the government’s use
of the unavoidable delays defense to nullify its statutory
obligations. This court explained that as “a matter of
statutory construction, the D.C. Circuit interpreted DOE’s
obligation to begin accepting nuclear waste in 1998 as
unconditional.” Id. at 1375. Thus, the D.C. Circuit’s
holding that “the government’s failure to have a reposito-
ry ready by January 31, 1998, could not be excused as
unavoidable delay,” was based on its interpretation of the
NWPA. Id.
In 2003, Entergy Nuclear FitzPatrick, LLC, Entergy
Nuclear Indian Point 3, LLC, and Entergy Nuclear Oper-
ations, Inc. (collectively Entergy) sued the United States
asserting that DOE partially breached contracts through
its failure to accept SNF beginning on January 31, 1998.
Entergy FitzPatrick I, 93 Fed. Cl. at 741. Similar to other
utilities, Entergy claimed the government’s breach caused
it to “incur substantial additional costs” associated with
their SNF storage. Id. After a five year stay, the gov-
ernment answered Entergy’s complaint with an affirma-
tive defense based upon the unavoidable delays clause in
the Standard Contract.
ENTERGY NUCLEAR v. US 8
The Court of Federal Claims granted Entergy’s mo-
tion to strike this defense based on the writ of mandamus
issued by the D.C. Circuit in Northern States, which this
court previously held was entitled to res judicata effect in
Nebraska Public Power. Id. at 745–46. The Energy
Department sought reconsideration based on this court’s
later decision in Southern Nuclear Operating Co. v. Unit-
ed States, 637 F.3d 1297 (Fed. Cir. 2011) (Southern Nu-
clear). According to the government, Southern Nuclear
held that the Northern States writ of mandamus does not
bar assertion of the unavoidable delays defense to limit
damages in the Court of Federal Claims. Entergy Fitz-
Patrick II, 101 Fed. Cl. at 469. The trial court denied the
motion for reconsideration and sua sponte certified the
question for interlocutory appeal pursuant to 28 U.S.C. §
1292(d)(2). Id. at 472–74. This court granted the petition
for interlocutory appeal. Entergy Nuclear Fitzpatrick,
LLC v. United States, 449 F. App’x 947 (Fed. Cir. 2012).
II.
This court reviews legal conclusions of the Court of
Federal Claims, including contract interpretation, de
novo. Yankee Atomic Elec. Co. v. United States, 536 F.3d
1268, 1272 (Fed. Cir. 2008). This court reviews the trial
court’s decision on reconsideration for an abuse of discre-
tion. Yuba Natural Resources, Inc. v. United States, 904
F.2d 1577, 1583 (Fed. Cir. 1990).
The government’s appeal challenges the scope of this
court’s en banc Nebraska Public Power decision. The
government avers it may raise the Standard Contract’s
unavoidable delays clause as a defense limiting its dam-
ages for failing to accept SNF starting in January 1998.
It argues, based on this court’s later Southern Nuclear
panel decision, that Nebraska Public Power only prevents
the unavoidable delays clause as a defense to liability.
9 ENTERGY NUCLEAR v. US
In Southern Nuclear, this court affirmed a Court of
Federal Claims’ holding that the government waived the
unavoidable delays defense by raising it post-trial.
Southern Nuclear, 637 F.3d at 1306. In Southern Nucle-
ar, the government argued that it reasonably believed it
was barred by the Northern States mandamus order from
raising the unavoidable delays defense, thus it could not
have voluntarily or knowingly waived the defense at trial.
Id. at 1305. This court found that argument unpersuasive
and stated:
In our en banc decision in Nebraska Public Power,
we did not suggest that the District of Columbia
Circuit’s decisions in any way foreclosed arguing
in favor of the defense in the Claims Court. In-
deed, we considered the government's argument
and held that the District of Columbia Circuit had
jurisdiction to enter the mandamus order and that
its decision in Northern States was entitled to res
judicata effect on the issue of liability but that it
did not “direct the implementation of any reme-
dy.”
Id. at 1306 (citation omitted). Yet, on the merits, the
panel concluded that the argument was waived:
Because the government failed to raise the una-
voidable delays clause here and because this fail-
ure was not compelled by the District of Columbia
Circuit’s mandamus in Northern States, it has
waived the defense. We need not reach the ques-
tion posed by the Nebraska Public Power concur-
rence as to whether the ‘unavoidable delays’
clause could provide a defense to expectancy dam-
ages.
Id. at 1306.
ENTERGY NUCLEAR v. US 10
In this case, the government argues that Southern
Nuclear interpreted Nebraska Public Power and “express-
ly held that, notwithstanding the mandamus order issued
by the [D.C. Circuit] in Northern States, the United States
has the right to invoke the [unavoidable delays] clause as
a defense to damages.” Appellant’s Br. at 14.
The government’s argument is an extension of the
Nebraska Public Power concurrence, which responded to
the lone dissent in that opinion. The Nebraska Public
Power dissent interpreted “the order in mandamus [to be]
clearly directed to the interpretation of the Standard
Contract (not the NWPA) and is thus not only outside the
jurisdiction of the D.C. Circuit, but also infringes upon the
Court of Federal Claims’s exclusive Tucker Act jurisdic-
tion over the administration of contract disputes.” Ne-
braska Public Power, 590 F.3d at 1377 (Gajarsa, J.,
dissenting). The dissent further elaborated that “the
majority cannot avoid the obvious legal conclusion that
this affects the damages imposed upon the United
States.” Id. at 1381. Put another way, “the D.C. Circuit
ordered what is, in effect, compensatory relief. . . . The
D.C. Circuit exceeded its jurisdiction in [precluding the
DOE from relying on the unavoidable delays clause] and
by its writ thus obligated the DOE to pay compensatory
damages in a subsequent breach of contract action.” Id.
at 1384. Nonetheless, the remainder of the en banc
court upheld the mandamus order based on the D.C.
Circuit’s authority to construe the NWPA and to direct
DOE to comply with its statutory obligations. Id. at 1376.
In response, the Nebraska Public Power concurrence,
without citing to specific language in either the majority
opinion or Northern States, contended that these cases do
not “order[] the government to pay money damages (ex-
pectancy damages) for breach of the agreement.” Id. at
1377 (Dyk, J., concurring). “Although I read the majority
as establishing government liability, it remains open for
11 ENTERGY NUCLEAR v. US
the government to argue that the Unavoidable Delays
clause bars a damages award (as opposed to some other
contractual remedy such as restitution).” Id.
In contrast, the Nebraska Public Power majority held
that the D.C. Circuit’s “order did not address any issue of
contract breach, direct the implementation of any remedy,
or construe any contract defense, except to the extent that
the proposed interpretation of the contract would conflict
with the statutory directive in section 302(a)(5).” Id. at
1376. That statutory directive is the performance com-
mencement date of “not later than January 31, 1998.” See
42 U.S.C. § 10222 (a)(5)(B). “Beyond that implementation
of its statutory ruling, the D.C. Circuit properly left all
issues of contract breach, enforcement, and remedy to be
determined in the litigation before the Court of Federal
Claims.” Nebraska Public Power, 590 F.3d at 1376.
In this case, the trial court recognized in its motion
for reconsideration that “[i]mplicit in the [Southern Nu-
clear] panel’s holding is that the unavoidable delays
defense could have been raised despite the mandamus
(but it wasn’t, so therefore it was waived).” Entergy
FitzPatrick II, 101 Fed. Cl. at 469. Nonetheless, the trial
court concluded that under the controlling Nebraska
Public Power en banc decision, the government may not
invoke an unavoidable delays defense.
The government differentiates between asserting the
unavoidable delays clause as a defense to liability and
asserting this clause as a defense to damages. It does not
dispute that Nebraska Public Power and the Northern
States mandamus preclude the clause as a defense to
liability for failing to begin accepting SNF on January 31,
1998. Instead, the government contends it is not preclud-
ed from asserting the clause as a defense to monetary
damages arising from that breach. Appellant’s Br. at 1.
ENTERGY NUCLEAR v. US 12
In supplemental briefing before the trial court in this
case, the government outlined its intended use of the
defense. It indicated that “the United States does not
propose to use the unavoidable delays defense as a get-
out-of-jail-free card” concerning liability. Entergy Fitz-
Patrick II, 101 Fed. Cl. at 465. Rather, the government
intends to use the defense to “circumscribe[ ] the amount
of expectation damages.” Id. In particular, it argues that
costs incurred by Entergy from the state of Nevada’s
efforts to prevent licensing of a repository are covered by
the unavoidable delays clause. “[Entergy’s] recovery
should be reduced only by the amount that [Entergy]
would have expended had the United States accepted
SNF on a schedule delayed only by the length of time
attributable to Nevada’s dilatory conduct.” Id. The gov-
ernment specifically asserts, “the unavoidable delays that
DOE has encountered as a result of the [sic] Nevada’s
conduct would have delayed the commencement of SNF
acceptance by at least 31 months, or from January 30,
1998 through at least August 2000.” Id. (emphasis in
original). For that reason, the government contends that
Entergy’s damages for SNF storage resulting from the
government’s delay in performance “did not commence
until September 2000—the earliest that performance
could have begun given the Unavoidable Delays that DOE
encountered.” Id.
The government’s attempt to separate liability and
damages highlights the reason that Northern States and
Nebraska Public Power clearly control the issue. By the
government’s admission, the functional result of the
unavoidable delays clause releases the government from
its statutory burden of performance by January 1998.
This it may not do.
In Nebraska Public Power, this court held that the
D.C. Circuit had jurisdiction to review the government’s
compliance with the NWPA and that the Northern States
13 ENTERGY NUCLEAR v. US
writ of mandamus should be afforded res judicata effect.
Nebraska Public Power, 590 F.3d at 1376. In Northern
States, the D.C. Circuit ordered:
DOE to proceed with contractual remedies in a
manner consistent with NWPA’s command that it
undertake an unconditional obligation to begin
disposal of the SNF by January 31, 1998. More
specifically, we preclude DOE from concluding
that its delay is unavoidable on the ground that it
has not yet prepared a permanent repository or
that it has no authority to provide storage in the
interim.
Northern States, 128 F.3d at 760 (emphasis added). For
the second time, the D.C. Circuit expressly rejected DOE’s
argument that “it does not have responsibility for the
costs resulting from its failure to [begin accepting SNF by
January 31, 1998] because it does not have an operational
repository or other facility.” Id. The Northern States
court further elaborated “DOE cannot now render its
obligation contingent, and free itself of the costs caused by
its delay, by advancing the same failed position that we
rejected [in Indiana Michigan].” Id. (emphasis added).
The D.C. Circuit’s mandamus order was unmistakably
directed at both liability for and damages resulting from
DOE’s failure to meet its statutory obligation. The man-
damus order “preclude[d] DOE from advancing any con-
struction of the Standard Contract that would excuse its
delinquency on the ground that it has not yet established
a permanent repository or an interim storage program.”
Id. at 756.
This court addressed the scope of the Northern States
mandamus order in Nebraska Public Power. This court
explained that “based on its interpretation of the NWPA,
the D.C. Circuit held that the government’s failure to
have a repository ready by January 31, 1998, could not be
ENTERGY NUCLEAR v. US 14
excused as unavoidable delay.” Nebraska Public Power,
590 F.3d at 1383 (emphasis added). This court further
held, “[t]he D.C. Circuit’s order prohibited the government
from using contract interpretation as a means of avoiding
its statutory obligations under section 302, which the D.C.
Circuit was authorized to do as a means of enforcing the
statutory claim that was brought before it in the Indiana
Michigan case.” Id. at 1365. As this court en banc elabo-
rated, the D.C. Circuit issued its mandamus order to “bar
DOE from doing under the rubric of contract interpreta-
tion what section 302(a)(5)(B) prohibited as a matter of
statutory compulsion.” Id. at 1372. Moreover, the en
banc court expressly acknowledged that, although the
D.C. Circuit’s writ was not itself “an award of damages,”
the relief granted “could affect subsequent contract litiga-
tion that in turn could result in an award for damages,”
id. at 1371 n.7, and that “the D.C. Circuit’s remedial order
would affect later litigation over contract-based rights.”
Id. at 1376. The mandamus order’s application to damag-
es was thus contemplated in this court’s Nebraska Public
Power decision.
In sum, Nebraska Public Power’s holding that the
D.C. Circuit’s mandamus order is entitled to res judicata
effect precludes use of the unavoidable delays clause as a
defense to both liability and damages resulting DOE’s
failure to meet the January 1998 deadline. Even if there
were a contrary “implicit” finding in Southern Nuclear,
the en banc Nebraska Public Power decision controls. See
Texas Am. Oil Corp. v. Dep’t of Energy, 44 F.3d 1557, 1561
(Fed. Cir. 1995) (en banc). The government had an un-
conditional statutory obligation to accept SNF beginning
by January 31, 1998. 42 USC § 10222 (a)(5)(B); Nebraska
Public Power, 590 F.3d at 1375–76; Northern States, 128
F.3d at 760.
Additionally, the government’s acceptance of liability
for breaching its statutory obligation to accept SNF is
15 ENTERGY NUCLEAR v. US
inconsistent with its contention that the unavoidable
delays clause allows a reduction in damages resulting
from its failure to begin acceptance of SNF in January
1998. This court has expressly established that breach of
the Standard Contract began on January 31, 1998. Maine
Yankee, 225 F.3d at 1341–42. In contrast, as the Court of
Federal Claims has noted, if performance is excused
under the unavoidable delays clause until a date after
January 1998, then there is no basis for determining
liability for partial breach beginning January 31, 1998.
See Entergy FitzPatrick II, 101 Fed. Cl. at 471–472; see
also Portland Gen. Elec. Co. v. United States, 100 Fed. Cl.
46, 51 (2011) (“The two concepts are mutually exclusive; if
damages do not accrue, it is because performance is
excused, i.e., there is no breach.”).
III.
For the forgoing reasons, the trial court’s denial of the
motion to reconsider is affirmed.
AFFIRMED