COTTER CORP., N.S.L., Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2023-1826 ______________________

Appeal from the United States Court of Federal Claims in No. 1:22-cv-00414-DAT, Judge David A. Tapp. ______________________

Decided: February 10, 2025 ______________________

JENNIFER R. STEEVE, Riley Safer Holmes & Cancila LLP, Irvine, CA, argued for plaintiff-appellant. Also rep- resented by CONNOR FARRELL, ALEJANDRO LUIS SARRIA, JASON NICHOLAS WORKMASTER, Miller & Chevalier Char- tered, Washington, DC.

JOHN HUGH ROBERSON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for defendant-appellee. Also repre- sented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR. ______________________ 2 COTTER CORP., N.S.L. v. US

Before MOORE, Chief Judge, TARANTO, Circuit Judge, and SCHROEDER, District Judge. 1 TARANTO, Circuit Judge. In 1957, in order to protect the public and to encourage private-sector engagement in activities involving atomic energy, Congress enacted the Price-Anderson Act (PAA), Pub. L. 85-256, 71 Stat. 576 (Sept. 2, 1957) to amend the Atomic Energy Act of 1954 (1954 Act or AEA), Pub. L. 83- 703, 68 Stat. 919 (Aug. 30, 1954), which had replaced the Atomic Energy Act of 1946 (1946 Act), Pub. L. 79-585, 60 Stat. 755 (Aug. 1, 1946). The PAA provided, as relevant here, that when the government entered into a contract for a contractor to engage in specified nuclear-energy “activi- ties under the risk of public liability for a substantial nu- clear incident” and the contract included a specified indemnity provision, the government “shall indemnify” not only its contractor, but also the broader class of “persons indemnified” for “public liability arising out of or in connec- tion with the contractual activity.” PAA § 4, 71 Stat. at 576–77 (adding new § 170(d) to AEA). The PAA defined the key terms: “person indemnified” included both “the per- son with whom an indemnity agreement is executed and any other person who may be liable for public liability”; “public liability” broadly covered “any legal liability arising out of or resulting from a nuclear incident”; and “nuclear incident” broadly covered occurrences within the United States causing personal or property-related harm “arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by- product material.” Id. § 3, 71 Stat. at 576 (adding § 11(o), (r), (u) to AEA). A 1962 amendment to the 1954 Act, made by Pub. L. 87-615, §§ 4–5, 76 Stat. 409, 410 (Aug. 29, 1962)

1 Honorable Robert W. Schroeder III, District Judge, United States District Court for the Eastern District of Texas, sitting by designation. COTTER CORP., N.S.L. v. US 3

(1962 Act), essentially reiterated the definitions of “nuclear incident” and “person indemnified” for domestic incidents. In 1962, the Atomic Energy Commission (AEC) entered into a PAA-covered, indemnity-containing contract (the In- demnification Agreement) with Mallinckrodt Chemical Works (Mallinckrodt), which had processed uranium for the government’s use since early in World War II. In the late 1960s, Cotter Corporation (N.S.L.) (Cotter) bought some of the radioactive material and residues (“source ma- terials” under the AEA as amended) originally produced by Mallinckrodt. And in 2012, numerous plaintiffs brought a tort action in federal court in Missouri against Cotter, Mallinckrodt, and others, the plaintiffs seeking compensa- tion based on allegations of serious harm from the release of radioactive material (i.e., a “nuclear incident” under the