Cotter Corp., N.s.l. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
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
______________________
J ENNIFER R. STEEVE , Riley Safer Holmes & Cancila
LLP, Irvine, CA, argued for plaintiff-appellant. Also rep-
resented by CONNOR F ARRELL , ALEJANDRO L UIS S ARRIA ,
J ASON N ICHOLAS WORKMASTER , Miller & Chevalier Char-
tered, Washington, DC.
J OHN 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, P ATRICIA M. MCCARTHY ,
F RANKLIN E. WHITE, J R.
______________________

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COTTER CORP., N. S. L. v. US 2
Before M OORE, Chief Judge, T ARANTO, Circuit Judge, and
SCHROEDER , District Judge.1
T ARANTO, 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.

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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
PAA-amended AEA) in the St. Louis area. Public Redacted
Complaint at 9 ¶ 36, Cotter Corporation (N.S.L.) v. United
States, 165 Fed. Cl. 138 (Fed. Cl. 2023) (No. 22-cv-00414),
ECF No. 13 (Public Redacted Compl.).
In 2022, Cotter brought the present action against the
United States under the Tucker Act, 28 U.S.C. § 1491(a),
in the United States Court of Federal Claims (Claims
Court), seeking indemnification under the PAA for the
costs of defending and settling the Missouri case, which
Cotter asserted was a “public liability” action under the
PAA. Id. at 1 ¶ 1, 2 ¶ 4, 3 ¶¶ 7–9, 9–13 ¶¶ 36–52. In the
Claims Court, Cotter alleged that it was entitled to govern-
ment indemnification on two bases under the Tucker Act.
One basis was directly under the money-mandating PAA.
Id. at 13–14 ¶¶ 54–59. The other was under the (AEC-
Mallinckrodt) Indemnification Agreement, of which Cotter
asserted it was a third-party beneficiary. Id. at 14–15
¶¶ 61–74.
The government moved to dismiss Cotter’s complaint
for failure to state a claim for statutory indemnification
and, regarding the claim for contractual indemnification,

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COTTER CORP., N. S. L. v. US 4
for lack of subject-matter jurisdiction (based on lack of
standing) and for failure to state a claim. The Claims
Court granted the motion on all grounds. Cotter Corpora-
tion (N.S.L.) v. United States, 165 Fed. Cl. 138, 142, 152
(Fed. Cl. 2023) (Claims Court Opinion). We now reverse,
and we remand for the case to proceed past the motion-to-
dismiss stage.
I
We first describe the relevant statutory regime. We
then summarize facts we accept as true for purposes of this
appeal, which the parties agree include the allegations of
the complaint here, the AEC-Mallinckrodt contract as re-
peatedly supplemented (e.g., Indemnification Agreement),
and judicially noticeable facts about the Missouri case that
underlies the claim for government indemnification. We
then describe the present litigation.
A
After the Manhattan Project’s development of fission-
based atomic bombs during World War II, Congress en-
acted the AEA in 1946 to create the AEC and establish
tight AEC control over atomic energy, including through
government ownership of “fissionable materials” (e.g., cer-
tain enriched uranium), AEC near-monopolization of the
production of such materials (e.g., through enriching or
processing uranium, uranium ore, or other “source mate-
rial”) and the distribution of “byproduct materials,” and re-
quiring licenses for activities involving “source materials,”
“fissionable materials,” and “atomic energy.” 1946 Act
§§ 1–2, 4–5, 7, 9, 12, 60 Stat. at 755–66, 770–71. Congress
enacted a full revision of the 1946 Act in the 1954 Act,
which sought “to encourage widespread participation in the
development and utilization of atomic energy for peaceful
purposes.” AEA § 3(d), 68 Stat. at 922. (In a newly cen-
tralized definitional provision, it also substituted “special
nuclear materials” for the 1946 Act’s “fissionable materi-
als.” AEA §§ 11(t), 41, 68 Stat. at 924, 928; 1946 Act § 4,

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COTTER CORP., N. S. L. v. US 5
60 Stat. at 759.) The Supreme Court explained in Duke
Power Co. v. Carolina Environmental Study Group, Inc.
that, whereas the 1946 Act “contemplated that the devel-
opment of nuclear power would be a Government monop-
oly,” the 1954 Act’s “policy,” reflected in various provisions,
was to “encourage[] the private sector to become involved
in the development of atomic energy for peaceful purposes
under a program of federal regulation and licensing.” 438
U.S. 59, 63 (1978).
“It soon became apparent,” however, that the risk of
substantial liability following a nuclear incident (though
such an incident appeared unlikely) was a “major obstacle”
to private industry making the desired investments into
the atomic energy industry. Id. at 63–64; see S. REP . N O.
85-296, at 1 (1957) (explaining that “the problem of liability
has become a major roadblock” to “further industrial par-
ticipation in the [atomic energy] program”). The Price-An-
derson Act of 1957 was Congress’s response to that
problem. The PAA amended the AEA to authorize the gov-
ernment to “make funds available for a portion of the dam-
ages suffered by the public from nuclear incidents” and to
“limit the liability of those persons liable for such losses”
“[i]n order to protect the public and to encourage the devel-
opment of the atomic energy industry, in the interest of the
general welfare and of the common defense and security.”
PAA, 71 Stat. at 576 (amending AEA § 2); see Duke Power,
438 U.S. at 64–65; S. REP . N O. 85-296, at 1, 15. And, what
is key in the present matter, the PAA also added several
provisions concerning government indemnification of per-
sons liable for harm from nuclear incidents. See PAA § 3,
71 Stat. at 576 (adding definitional provisions to AEA § 11);
PAA § 4, 71 Stat. at 576–79 (adding a new § 170 to AEA).2
2 The parties and the Claims Court agree that the
provisions we quote in text govern this case, given the

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COTTER CORP., N. S. L. v. US 6
As relevant here, PAA-added § 170 of the AEA, after
addressing indemnification related to certain government
licensees (not at issue before us), provided in subsection (d)
for indemnification agreements with government contrac-
tors. PAA-amended AEA § 170(d) provided:
[T]he [AEC] is authorized . . . to enter into agree-
ments of indemnification with its contractors for
the construction or operation of production or utili-
zation facilities or other activities under contracts
for the benefit of the United States involving activ-
ities under the risk of public liability for a substan-
tial nuclear incident. In such agreements of
indemnification the [AEC] may require its contrac-
tor to provide and maintain financial protection of
such a type and in such amounts as the [AEC] shall
determine to be appropriate to cover public liability
arising out of or in connection with the contractual
activity, and shall indemnify the persons indemni-
fied against such claims above the amount of the
financial protection required, in the amount of [the
public-liability cap of] $500,000,000 including the
reasonable costs of investigating and settling
claims and defending suits for damage in the ag-
gregate for all persons indemnified in connection
with such contract and for each nuclear incident.
PAA § 4, 71 Stat. at 577 (adding AEA § 170) (emphases
added). The first sentence, at least on its face, provided the
timing of the actions and incidents at issue. We follow suit.
For current versions, see, e.g., 42 U.S.C. §§ 2010, 2011,
2014. We refer to the AEC, even though in 1974 its func-
tions were transferred to a pair of new agencies. See En-
ergy Reorganization Act of 1974, Pub. L. 93-438, 88 Stat.
1233 (Oct. 11, 1974). The indemnification function at issue
here is now performed by the U.S. Department of Energy.
See 42 U.S.C. § 2210(d).

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COTTER CORP., N. S. L. v. US 7
AEC discretion to enter into an indemnity agreement with
a contractor; and the second sentence, in its first portion,
provided discretion to require the contractor to purchase
its own insurance for “public liability arising out of or in
connection with the contractual activity.” But the second
half of the second sentence provided that, at least when an
indemnity agreement is made, the indemnification “shall”
extend to “the persons indemnified against such claims”—
where the antecedent of “such claims” is necessarily claims
asserting “public liability arising out of or in connection
with the contractual activity.”
The PAA expressly defined the key terms used in
§ 170(d). Thus, PAA-amended AEA § 11 defined “person
indemnified” as “the person with whom an indemnity
agreement is executed and any other person who may be
liable for public liability”; “public liability” as “any legal li-
ability arising out of or resulting from a nuclear incident”;
and “nuclear incident” as “any occurrence within the
United States causing bodily injury, sickness, disease, or
death, or loss of or damage to property, or for loss of use of
property, arising out of or resulting from the radioactive,
toxic, explosive, or other hazardous properties of source,
special nuclear, or byproduct material.” PAA § 3, 71 Stat.
at 576 (adding § 11(r), (u), and (o) to AEA) (emphasis
added).
In 1962, in Pub. L. 87-615, 76 Stat. at 410, Congress
amended two of the PAA’s definitional provisions. One was
the definition of “person indemnified” in PAA-amended
AEA § 11(r). 1962 Act § 5, 76 Stat. at 410. The amendment
reaffirmed that, for a “nuclear incident occurring within
the United States” (and one involving the nuclear ship Sa-
vannah, even when it was abroad), “person indemnified”
meant “the person with whom an indemnity agreement is
executed and any other person who may be liable for public
liability.” PAA-amended AEA § 11(r) (after 1962 amend-
ment) (emphases added). In contrast, for nuclear incidents
“occurring outside the United States” (except when

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COTTER CORP., N. S. L. v. US 8
involving the Savannah), “person indemnified” was more
limited: It meant “the person with whom an indemnity
agreement is executed and any other person who may be
liable for public liability by reason of his activities under
any contract with the [AEC]” or certain other “project[s].”
Id. (emphases added).3 The domestic-incident “person in-
demnified” is not limited by such a requirement of a con-
nection to under-contract-or-project activities.
The second altered provision was the definition of “nu-
clear incident,” PAA-amended AEA § 11(o), for which Con-
gress introduced a similar domestic/foreign distinction.
1962 Act § 4, 76 Stat. at 410. For incidents occurring
within the United States (and for the ship Savannah), Con-
gress essentially retained the broad 1957 definition but
clarified that the term applied where the resulting harms
caused by the occurrence were “within or outside the
United States.” Id. In contrast, coverage was narrowed for
an “occurrence outside the United States” to require that
3 New § 11(r) of the AEA read: “The term ‘person in-
demnified’ means (1) with respect to a nuclear incident oc-
curring within the United States and with respect to any
nuclear incident in connection with the design, develop-
ment, construction, operation, repair, maintenance, or use
of the nuclear ship Savannah, the person with whom an
indemnity agreement is executed and any other person
who may be liable for public liability; or (2) with respect to
any other nuclear incident occurring outside the United
States, the person with whom an indemnity agreement is
executed and any other person who may be liable for public
liability by reason of his activities under any contract with
the [AEC] or any project to which indemnification under
the provisions of section 170d. has been extended or under
any subcontract, purchase order or other agreement, of any
tier, under any such contract or project.” 1962 Act § 5, 76
Stat. at 410.

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COTTER CORP., N. S. L. v. US 9
the “occurrence involve[] a facility or device owned by, and
used by or under contract with, the United States.” Id. (em-
phasis added).4
B
1
Starting in 1942, Mallinckrodt processed uranium for
use in the government’s atomic-weapons program. Claims
Court Opinion, at 143 & n.4; J.A. 39–40, 44. In 1943, the
United States (for the War Department) entered into a con-
tract with Mallinckrodt (effective late 1942) to operate gov-
ernment-owned plants located in downtown St. Louis,
Missouri (“St. Louis Downtown Site,” or SLDS, Public Re-
dacted Compl. at 4 ¶ 14) and to produce, store, and prepare
for shipment specific quantities of secret products (refined
uranium). J.A. 41–64; see J.A. 131–37 (map of some of the
facilities in downtown St. Louis provided in 1947 supple-
mental agreement No. 15), 309–20 (describing and show-
ing the same from supplemental agreement No. 45, entered
into in 1950); Claims Court Opinion, 143. The government
4 New § 11(o) of the AEA read: “The term ‘nuclear
incident’ means any occurrence within the United States
causing, within or outside the United States, bodily injury,
sickness, disease, or death, or loss of or damage to property,
or loss of use of property, arising out of or resulting from
the radioactive, toxic, explosive, or other hazardous prop-
erties of source, special nuclear, or byproduct material:
Provided, however, That as the term is used in subsection
170l. [concerning the Savannah], it shall include any such
occurrence outside the United States: And provided fur-
ther, That as the term is used in section 170d., it shall in-
clude any such occurrence outside the United States if such
occurrence involves a facility or device owned by, and used
by or under contract with, the United States.” 1962 Act § 4,
76 Stat. at 410.

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COTTER CORP., N. S. L. v. US 10
furnished supplies to Mallinckrodt for the latter to process
into uranium products and required Mallinckrodt to de-
liver any unused materials to the government and to dis-
pose of “finished product or any part thereof . . . found not
to meet the [government] specifications . . . as directed by
the Contracting Officer.” J.A. 44–45 (1943 contract Arti-
cles 1, 4), 62 (1943 contract Article 33). In 1945, the War
Department also contracted Mallinckrodt for “research
consultant services and plant operations.” J.A. 65.
Over the years, Mallinckrodt and the government
adopted more than a hundred supplemental agreements
(SAs) to modify their contractual relationship. See J.A. 65–
815. One recognized the transfer of the War Department’s
role to the AEC shortly after the 1946 Act became law, J.A.
96, 110 (1947 SA No. 10), and the last (entered into in Au-
gust 1966) stated that the contract work would continue
“through June 30, 1967,” J.A. 814 (1966 SA No. 129). Sev-
eral SA provisions have particular importance here.
SA No. 45 (entered into in 1950 but effective as of Oc-
tober 1949), J.A. 250–333, merged the 1943 and 1945 con-
tracts and required, among other things, that Mallinckrodt
transport certain “uranium containing raw materials” from
a government-owned storage site near the airport (“St.
Louis Airport Site” or SLAPS) to the government plants (at
SLDS), J.A. 261 (Article I-A ¶ 7(c)), and transport certain
residues and byproducts from the plants to SLAPS and
“dispose of these by-products in the facilities supplied at
the Airport Site, as directed by the [AEC],” J.A. 260 (Article
I-A ¶ 7(b)). SA No. 45 also provided for government indem-
nification of Mallinckrodt for losses, expenses (including
for litigation), and damages “arising out of, based on or
caused by the toxicity and/or radioactivity of uranium-
bearing raw materials and/or products or by-products de-
rived therefrom that may be or may at any time have been
involved in the performance of the work under this con-
tract.” J.A. 286 (Article III-E ¶ 1). Mallinckrodt was to
notify the AEC of any “claim . . . described in” the above

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COTTER CORP., N. S. L. v. US 11
language and to authorize, if requested by the AEC, a gov-
ernment representative to “settle or defend any such
claim.” J.A. 287–88 (Article III-E ¶ 3); see also J.A. 532–34
(SA No. 81, entered into in 1952 but effective 1953, reaf-
firming the indemnification and litigation claims), 691–92
(SA No. 115, entered into in 1955 but effective 1956, reaf-
firming government indemnification for litigation and
claims under Article XIV, J.A. 711–12).
SA No. 122 (entered into in 1961 but effective as of No-
vember 1960), J.A. 763–75, addressed certain post-con-
tract-termination duties and rights. The government was
to take “reasonable efforts to decontaminate” property.
J.A. 772; see also J.A. 765–74. And for five years, Mallinck-
rodt could dispose of contaminated material in a govern-
ment-owned Weldon-Spring Quarry Site, J.A. 773—which
was near production facilities constructed, operated, and
maintained by Mallinckrodt pursuant to SA No. 110 (en-
tered into in 1955), J.A. 660–66, and SA No. 126 (entered
into in 1963), J.A. 789–801.
On August 28, 1962, the day before enactment of the
1962 PAA amendment, Mallinckrodt and the United States
(represented by the AEC) entered into SA No. 124 (the In-
demnification Agreement), J.A. 780–85, “for the purpose of
including . . . certain provisions relative to the indemnifi-
cation of the Contractor and others with respect to public
liability resulting from certain nuclear incidents,” as au-
thorized by the PAA-amended AEA, J.A. 780. It provided
in part:
3. a. To the extent that the Contractor and any
other persons indemnified are not compensated by
any financial protection permitted or required by
the [AEC], the [AEC] will and does hereby indem-
nify the Contractor, and other persons indemnified,
against (i) claims for public liability as described in
Paragraph b. of this Section 3; and (ii) the reason-
able costs of investigating and settling claims, and

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COTTER CORP., N. S. L. v. US 12
defending suits for damage for such public liability,
provided that the [AEC’s] liability under all indem-
nity agreements entered into by the [AEC] under
Section 170 of the [Atomic Energy] Act, including
this contract, shall not exceed $500,000,000, in-
cluding such reasonable costs, in the aggregate for
each nuclear incident irrespective of the number of
persons indemnified in connection with this con-
tract.
b. The public liability referred to in Paragraph a. of
this section is public liability which (i) arises out of
or in connection with the contractual activity; and
(ii) arises out of or results from: . . .
(4) a nuclear incident which involves items
(such as equipment, material, facilities, or
design or other data) produced or delivered
under this contract, . . . .
J.A. 781–82 (emphases added). The Indemnification
Agreement also stated that “[t]he obligations of the [AEC]
. . . shall not be affected by any failure on the part of the
Contractor to fulfill any of its obligations under this con-
tract, and shall be unaffected . . . by the completion, termi-
nation or expiration of this contract.” J.A. 783.
2
As early as 1960 or as late as 1962, the AEC started to
solicit private companies to purchase radioactive residues
stored at SLAPS. Public Redacted Compl. at 5 ¶¶ 16–17;
J.A. 1108. According to the complaint here, the AEC stated
that “contents of value,” such as rare earth metals and ura-
nium, could be extracted from this “source material” and
that the remaining material could be disposed of at the gov-
ernment-owned Weldon Spring Quarry Site. Public Re-
dacted Compl. at 5 ¶ 16.
In February 1966, the AEC completed a sale to Conti-
nental Mining & Milling Co. (Continental)—a Delaware

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COTTER CORP., N. S. L. v. US 13
corporation with its principal office in Chicago, Illinois—of
approximately 117,000 tons of materials and “[m]iscellane-
ous [r]esidues” from SLAPS. See id. at 6 ¶ 21; J.A. 1106–
12. To take possession of this “source material,” as defined
by the AEA, Continental was required to obtain a license
from the AEC, which the AEC issued. Public Redacted
Compl. at 6 ¶ 21. Continental was to move the materials
to a storage site in Hazelwood, Missouri, referred to in this
case as “Latty Avenue.” Id.
In quick succession, within the following sixteen
months, two important changes in possession occurred.
First, Commercial Discount Corporation (Commercial)
foreclosed on Continental’s assets, including the radioac-
tive materials and Continental’s property at Latty Avenue,
where at least some of the radioactive materials were
stored. Complaint at 10–11 ¶ 12.B.3 & nn.2–3, 21 ¶ 43,
McClurg v. MI Holdings, et. al, No. 4:12-cv-00361 (E.D. Mo.
Feb. 28, 2012), ECF No. 1 (McClurg Compl.). Then, on
June 9, 1967, Commercial sold 54,000 dry tons of mineral
residue at Latty Avenue to Cotter—a New Mexico corpora-
tion with a facility in Cañon City, Colorado.5 J.A. 1114–26.
Commercial was to deliver the material to a specified loca-
tion and indemnify Cotter for liability “attributable to the
period prior to delivery.” J.A. 1114–15; see also J.A. 1134.
Commercial and Cotter entered into additional purchase
agreements, including an August 1969 agreement for Cot-
ter to pick up certain materials left at Latty Avenue. J.A.
1128–40. Both parties were to have an AEC license, J.A.
1119–20, and Cotter would “sample the residue by methods
5 The record before us contains information about
Cotter’s subsequent history and possible non-government
indemnification for at least some of the McClurg liability.
See McClurg Compl. at 11–13 ¶¶ 12.B.5, 12.B.6, 12.B.12,
12.B.13; see also J.A. 1380. The issue before us does not
turn on that information.

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COTTER CORP., N. S. L. v. US 14
presently employed by it in accordance with contractual re-
quirements imposed upon [Cotter] by the [AEC],” J.A.
1117; see also J.A. 1135.
In December 1969, Cotter applied for, and received, a
“source material” license from the AEC to transport the
material, noting in its application that its “activities will be
conducted in a manner identical to those previously con-
ducted by Commercial” under its own AEC license. J.A.
1141–46; see also J.A. 1142 (identifying “ore residues” with
“.3–2.0% U”); Public Redacted Compl. at 2–3 ¶¶ 4–6 (refer-
ring to “radioactive source material”). Most of the material
was transported by rail to Cotter’s Cañon City plant be-
tween 1970 and 1973. Public Redacted Compl. at 6 ¶ 22.
The AEC withdrew its offer for Cotter to dispose of the re-
maining Latty Avenue material at the government-owned
Weldon Spring Quarry Site. Id. at 6 ¶ 23. Cotter subse-
quently had some of the source material transported by
other entities to the West Lake Landfill in Bridgeton, Mis-
souri, between July and October 1973. Id.; id. at 3 ¶ 6. In
1973, Cotter’s license ended after Cotter ceased its opera-
tions at Latty Avenue. Id. at 6–7 ¶ 24. A 1974 AEC in-
spection of Latty Avenue confirmed compliance with
relevant regulations and requirements. Id.
C
In 2012, more than 500 plaintiffs sued Cotter,
Mallinckrodt, and others in the Eastern District of Mis-
souri (McClurg litigation). Public Redacted Compl. at 9
¶ 36; McClurg Compl. at 10–13 ¶ 12. In a second amended
complaint, plaintiffs asserted that their filing constituted a
“public liability action” within the meaning of the PAA
against Mallinckrodt (for its activities between 1942 and
1957) and Cotter (for its activities between 1969 and 1973).
Second Amended Complaint at 3–4 ¶¶ 6–12, 4–5 ¶¶ 16–20,
25–26 ¶¶ 70–72, McClurg v. MI Holdings, et. al, No. 4:12-
cv-00361 (E.D. Mo. Jan. 10, 2014), ECF No. 178 (McClurg
Second Amended Compl.). According to the complaint,

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COTTER CORP., N. S. L. v. US 15
Mallinckrodt and Cotter’s release of hazardous, toxic, and
radioactive waste materials caused the plaintiffs bodily in-
jury, sickness, disease, or death, for which the plaintiffs
were asserting tort liability under Missouri law, based on
a “nuclear incident” (or series of such incidents). Id. at 25–
30 ¶¶ 70–88.
In particular, the McClurg plaintiffs alleged that
Mallinckrodt and Cotter contaminated the air, soil, surface
water, and ground water in the St. Louis area by improper
processing, handling, transportation, storage, and disposal
of radioactive materials and residues that had been origi-
nally produced by Mallinckrodt (under its contract with the
government) at and around SLDS, SLAPS, Latty Avenue
facility, and West Lake Landfill. Id. at 3 ¶¶ 7, 10–11, 4–5
¶¶ 15–18, 16–20 ¶¶ 27–43. Radioactive materials and res-
idues in Coldwater Creek, which is close to and a major
drainage mechanism for SLAPS and Latty Avenue, alleg-
edly migrated to other sites in St. Louis. Id. at 17 ¶ 30, 18–
19 ¶ 39, 21 ¶ 47, 22 ¶ 52, 23–24 ¶¶ 58–65. The plaintiffs
further alleged harm from the use of contaminated soil
from the West Lake Landfill for landfill in other locations,
id. at 4–5 ¶ 16, 22 ¶ 51, and from improper transportation
of radioactive material and residues from SLAPS to Latty
Avenue, id. at 22 ¶ 53.
In the present case, Cotter alleges that the federal gov-
ernment—specifically, the U.S. Department of Energy
(DOE), which by then had responsibility for indemnifica-
tion functions under the AEA, 42 U.S.C. § 2210(d), see su-
pra n.2—was notified of the McClurg litigation no later
than March 2012. Public Redacted Compl. at 10 ¶ 38.
Moreover, the McClurg record is clear that in February
2018, the district court ordered settlement discussions with
a court-appointed mediator. Memorandum and Order for
Settlement Discussions at 1–2, McClurg v. MI Holdings, et.
al, No. 4:12-cv-00361 (E.D. Mo. Feb. 22, 2018), ECF
No. 690 (Settlement Order). In that order, noting that
DOE may be “a possible indemnitor in this case” and that,

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COTTER CORP., N. S. L. v. US 16
despite the plaintiffs’ requests, no DOE representative had
appeared at any mediation conferences to date, the district
court directed that a DOE representative attend the settle-
ment conference and that counsel for Mallinckrodt provide
the order to DOE. Id.
In a letter sent the day before the scheduled mediation,
DOE declined to participate, saying that it was not its
“usual practice for addressing potential indemnification . . .
to participate directly in [the underlying tort litigation] set-
tlement discussions.” Letter to Court from Department of
Energy re: Order ECF No. 690 at 1, McClurg v. MI Hold-
ings, et. al, No. 4:12-cv-00361 (E.D. Mo. Mar. 7, 2018), ECF
No. 692 (DOE Letter). DOE added that “[i]ndemnification
. . . is primarily an issue of contract between DOE and a
contractor;” so indemnification was better addressed as
“separate and distinct” from the “claims of liability by pri-
vate parties (who do not have privity of contract with the
Government) against a DOE contractor.” Id. DOE further
stated that “to the extent that DOE has any indemnifica-
tion liability in connection with the claims in this litiga-
tion—which DOE does not concede—any such liability, as
noted above, would be as a result of a contractual relation-
ship with a party to this litigation.” Id. at 2.
On September 12, 2018, with amendments made on
April 29, 2019, the McClurg plaintiffs entered into Master
Settlement Agreements with Mallinckrodt and Cotter to
resolve the “asserted ‘public liability actions’ . . . for inju-
ries and death allegedly resulting from exposure to hazard-
ous, toxic, and radioactive substances (byproduct
materials) handled by Defendants at various times be-
tween 1942 and 1974, near Plaintiffs’ residences and places
of employment in north St. Louis County, Missouri.” Order
Approving Wrongful Death Settlements, Attorney Fees,
and Costs at 1–2, McClurg v. MI Holdings, et. al, No. 4:12-
cv-00361 (E.D. Mo. Dec. 30, 2019), ECF No. 806. The dis-
trict court approved the settlements as “fair and

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COTTER CORP., N. S. L. v. US 17
reasonable compensation for the[] wrongful death claims.”
Id. at 4; see also Public Redacted Compl. at 12 ¶ 48.
D
On April 11, 2022, Cotter filed the present action under
the Tucker Act in the Claims Court, seeking compensation
from the United States under the PAA in the amount of
$14,961,418.74 “for the costs of settling and defending the
public liability action” in the McClurg litigation. Public Re-
dacted Compl. at 1; see also id. at 3 ¶¶ 7–8, 13–14 ¶¶ 57–
59, 15 ¶¶ 72–74. Cotter asserted entitlement to indemnifi-
cation based on two counts: statutory indemnification pur-
suant to the PAA and contractual indemnification as an
intended third-party beneficiary of the AEC-Mallinckrodt
Indemnification Agreement. Id. at 13–15 ¶¶ 53–74. In Au-
gust 2022, the United States filed a motion to dismiss.
Def.’s Mot. to Dismiss, Cotter Corporation, (N.S.L.) v.
United States, 165 Fed. Cl. 138 (Fed. Cl. 2023) (No. 22-cv-
00414), ECF No. 16; see also Claims Court Opinion, at 141–
42. Regarding the statutory claim, the government argued
that Cotter failed to state a claim on which relief could be
granted under Rule 12(b)(6) of the United States Court of
Federal Claims (RCFC) because Cotter failed to plead a ba-
sis for statutory indemnification under the PAA. Def.’s
Mot. to Dismiss at 17–33. Regarding the contract claim,
the government sought dismissal under RCFC Rule
12(b)(6) for want of plausible allegations that it was an in-
tended third-party beneficiary of the Indemnification
Agreement and also sought dismissal under RCFC Rule
12(b)(1) for want of jurisdiction because, the government
argued, Cotter lacked standing. Id. at 33–37.
On March 3, 2023, the Claims Court granted the gov-
ernment’s motion to dismiss on all grounds and entered
judgment. Claims Court Opinion, at 138; Judgment, Cotter
Corporation (N.S.L.) v. United States, 165 Fed. Cl. 138
(Fed. Cl. 2023) (No. 22-cv-00414), ECF No. 21. Regarding
the statutory claim, the Claims Court concluded that the

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COTTER CORP., N. S. L. v. US 18
“clear and unambiguous” language of § 170(d) “limits who
may be party to or benefit from an indemnification agree-
ment” by providing for indemnification for “public liability
‘arising out of or in connection with the contractual activ-
ity,’” § 170(d) (emphasis added)—meaning, in the court’s
view, liability that “originate[s] from” or has “a relationship
to” the contractual activity. Claims Court Opinion, at 148–
49. Considering that formulation, and the PAA as a whole,
the Claims Court then held the complaint insufficient, re-
citing several reasons: Cotter “was not in privity of contract
with Mallinckrodt”; the “benefit to the government’s nu-
clear program” ended when Mallinckrodt stopped its con-
tractual activities; “Cotter’s handling of the material did
not ‘originate from’ Mallinckrodt’s contractual activity, but
rather possession by third parties”; and Cotter’s “handling
[of] material that was once under Mallinckrodt’s contract
is an insufficient causal sequence to trigger indemnifica-
tion obligations.” Id. at 149.
The court dismissed the contract count of the com-
plaint, concluding that Cotter lacked subject-matter juris-
diction and failed to state a claim upon which relief can be
granted. Id. at 150–52. Because Cotter “d[id] not fall
within the class ‘clearly intended to be benefit[t]ed’ by the
PAA’s indemnification under Section 170(d),” the Claims
Court concluded that Cotter “failed to establish it has
standing as an intended third-party beneficiary of the
Mallinckrodt contract and indemnification agreement.” Id.
at 152. Without standing, the Claims Court determined it
must grant the motion for lack of subject-matter jurisdic-
tion. Id. at 151. Moreover, “[e]ven if Cotter had standing,”
the Claims Court concluded, Cotter could not “plausibly al-
lege an ‘actual breach’ of [the AEC-Mallinckrodt] contract”
necessary for a contract claim because Cotter never asked
the government for indemnity and so was never denied it.
Id. at 152.
Cotter timely filed an appeal to this court on April 25,
2023. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

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COTTER CORP., N. S. L. v. US 19
II
“We review the dismissal for lack of subject-matter ju-
risdiction de novo. We review the dismissal for a failure to
state a claim on which relief can be granted de novo.” Tay-
lor v. United States, 959 F.3d 1081, 1086 (Fed. Cir. 2020)
(citations omitted). The Rule 12(b)(6) inquiry is whether
the factual allegations “cross the line to support a plausible
inference” that the government is statutorily or contractu-
ally liable for indemnifying Cotter. See UTTO Inc. v. Me-
trotech Corp., 119 F.4th 984, 991–92 (Fed. Cir. 2024)
(citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662,
678–80 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555–57, 570 (2007). The “plausibility” requirement
also applies to the government’s facial Rule 12(b)(1) chal-
lenge to jurisdiction over the contract claim here, which
challenges Cotter’s standing: The inquiry is whether the
complaint “‘contain[s] sufficient factual matter’ that would
plausibly establish standing.” Crow Creek Sioux Tribe v.
United States, 900 F.3d 1350, 1354–55 (Fed. Cir. 2018)
(quoting Iqbal, 556 U.S. at 678). In reviewing both dismis-
sals, we accept all well-pleaded factual allegations as true
and draw all reasonable inferences in favor of Cotter. Har-
ris v. United States, 868 F.3d 1376, 1379 (Fed. Cir. 2017);
see also Taylor, 959 F.3d at 1086; Ute Indian Tribe of the
Uintah & Ourah Indian Reservation v. United States, 99
F.4th 1353, 1364 (Fed. Cir. 2024). “We ‘may also look to
matters incorporated by reference or integral to the claim,
items subject to judicial notice, and matters of public rec-
ord.’’’ Ute Indian Tribe, 99 F.4th at 1364 (quoting A & D
Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed.
Cir. 2014)). We interpret both the statute and the contract
at issue here de novo. See Harris, 868 F.3d at 1379; NOAA
Maryland, LLC v. Administrator of the General Services
Administration, 997 F.3d 1159, 1165 (Fed. Cir. 2021);
Genentech, Inc. v. Immunex Rhode Island Corp., 964 F.3d
1109, 1111 (Fed. Cir. 2020).

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COTTER CORP., N. S. L. v. US 20
We conclude that the Claims Court erred in dismissing
Cotter’s statutory indemnification claim for failure to state
a claim, because the complaint states a plausible allegation
of entitlement to indemnification under the PAA. We then
address the contract claim. We reverse the district court’s
conclusion of lack of standing, which rested on the court’s
error on the statutory entitlement question. We also re-
verse the dismissal of the contract claim, because, on the
present record and arguments, the only argument made for
insufficiency of the contract claim is the same argument we
reject in reversing the dismissal of the statutory claim.
A
1
As is undisputed, the Claims Court had jurisdiction to
adjudicate the claim made under § 170(d). The Tucker Act
gives the Claims Court jurisdiction, and waives the sover-
eign immunity of the United States, for money claims
“against the United States founded [upon] . . . any Act of
Congress.” 28 U.S.C. § 1491(a)(1). That provision applies
when the statute invoked is a “so-called money-mandating
provision[],” i.e., “it can fairly be interpreted as mandating
compensation by the Federal Government for the damage
sustained.” Maine Community Health Options v. United
States, 590 U.S. 296, 324, 322 (2020) (internal quotation
marks and citation omitted). Section 170(d)’s “shall indem-
nify” language, like the “shall pay” language held sufficient
in Maine Community, 590 U.S. at 324–25, qualifies under
that standard. We therefore address the merits question
of what is required to come within § 170(d)’s “shall indem-
nify” language and whether Cotter has met the require-
ment for motion-to-dismiss purposes.
2
The “shall indemnify” obligation, where (as here) there
is a government-contractor indemnity agreement, reached
“persons indemnified” for “public liability arising out of or

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COTTER CORP., N. S. L. v. US 21
in connection with the contractual activity.” § 170(d). That
language plainly required, because of the express defini-
tions of the key terms in § 170(d), that the indemnification
duty, for a domestic nuclear incident (such as the one at
issue here), extends beyond the contractor to “any other
person who may be liable for public liability.” PAA-
amended AEA § 11(r) (before and after 1962 amendment)
(emphasis added). The last phrase—“public liability”—
meant “any legal liability arising out of or resulting from a
nuclear incident” (for a domestic nuclear incident). PAA-
amended AEA § 11(u) (before and after 1962).
This appeal turns on who is a “person indemnified” for
“public liability arising out of or in connection with the con-
tractual activity.” Those terms, with their embedded stat-
utory definitions, are what address the needed relationship
between the indemnity-claiming person’s liability and the
“contractual activity.” There is no meaningful dispute be-
fore us about two premises needed for that language to ap-
ply. First, there was a qualifying indemnity agreement,
i.e., the 1962 AEC-Mallinckrodt Indemnification Agree-
ment. See supra Part I.B.1. And second, Cotter is assert-
ing a right to indemnity for a liability arising out of or
resulting from a domestic occurrence causing harms from
radioactive and other hazardous properties of covered nu-
clear materials—materials created as part of Mallinck-
rodt’s performance of its contract with the government.
See, e.g., Cotter Opening Br. at 9–10, 21–22; Government
Response Br. at 10–11.
The Claims Court gave the statutory provision at issue
a narrow interpretation, which effectively required (a) a
contemporaneous relationship between the liability-gener-
ating acts of the non-contractor indemnity claimant (Cot-
ter) and the performance of the contract (by Mallinckrodt
or the government) and, seemingly, (b) that the indemnity
claimant’s activities (generating liability to others) were re-
lated to the contractual activities in the particular sense of
contributing to the performance of the contract. Such a

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COTTER CORP., N. S. L. v. US 22
view is suggested by the Claims Court’s reasons for finding
the standard not met even for motion-to-dismiss purposes.
Those reasons focus on the fact that Cotter’s actions (giving
rise to liability) post-dated Mallinckrodt’s work for the gov-
ernment, and they deem other facts insufficient—e.g., that
the materials Cotter was handling were created for the gov-
ernment under the contract, had an obvious potential to
remain hazardous for an extended period, were sold by the
government before the contract ended, and shortly thereaf-
ter were acquired by Cotter and held under an AEC license.
Claims Court Opinion, at 148–50. In this court, the gov-
ernment insists on what we understand to be materially
the same focus on a contemporaneous contribution to con-
tract performance when it says that the statutory standard
is met where the indemnity claimant “work[ed] under, in
support of, in connection with, or at the site of an AEC
weapons production contract for the benefit of the United
States” (i.e., when the contract was being performed) but
not where the claimant has “mere later ownership and pos-
session of radioactive material that resulted from [such a]
Contract.” Government Response Br. at 3–4; see, e.g., id.
at 19–20, 23, 25.
For the reasons we next explain, we conclude that the
narrow view taken by the Claims Court and argued by the
government is not the best reading of the statute and that
Cotter properly survives the motion to dismiss here.
3
To begin with the terms that precede “arising out of or
in connection with”—“persons indemnified” for “public lia-
bility”—it is clear that those terms (with the embedded def-
inition of “nuclear incident”) contemplate a broader range
of indemnity than the narrow view taken by the Claims
Court. The phrase “persons indemnified” is defined
broadly to cover not just the contractor but “any other per-
son who may be liable for public liability.” PAA-amended
AEA § 11(r) (before and after 1962 amendment) (emphasis

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COTTER CORP., N. S. L. v. US 23
added). Public liability, in turn, broadly reaches the “pub-
lic” by embracing “any legal liability arising out of or re-
sulting from a nuclear incident,” with exceptions (not at
issue here) for workers’ compensation for certain incident-
site employees and for certain losses of incident-site prop-
erty. Id. § 11(u) (emphasis added). And the definition of
“nuclear incident” covers “any occurrence within the
United States causing bodily injury . . . arising out of or re-
sulting from the radioactive, toxic, explosive, or other haz-
ardous properties of source, special nuclear, or byproduct
material.” PAA-amended AEA § 11(o) (emphasis added).
None of those provisions limits indemnity to the period
before the government contract ended or includes a re-
quirement that the indemnity claimant’s (exposure-caus-
ing) activity was contributing to the contracting parties’
performance. They are focused simply on the hazard from
the material—a hazard that is not limited in time to the
period of performance of a particular contract and may be
long lasting, for at least some of the covered nuclear mate-
rials. See, e.g., J.A. 286 (1950 S.A. No. 45 provisions recog-
nizing that harms may arise from radioactive materials,
products, or byproducts “that may be or may at any time
have been involved in the performance of the work under
this contract”), 298–300 (1950 S.A. No. 45 provisions recog-
nizing that hazards will outlast the contract), 772–73 (1961
S.A. No. 122 provisions recognizing the same).6 Unless
6 See also Atomic Energy Part 1: Hearings Before the
Special Comm. on Atomic Energy Pursuant to S. Res. 179,
79th Cong. 149 (1945) (“The manufacture of fissionable ma-
terials is by long odds the most dangerous manufacturing
process in which men have ever engaged. The process is
accompanied by the production of radioactive by-products
as poisonous as the basic material itself . . . .”) (statement
of Dr. Vannevar Bush, President, Carnegie Institution of

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COTTER CORP., N. S. L. v. US 24
potential investors in nuclear energy were confident that
such materials, as byproducts of contract use or residues
from creating material for such use, would no longer be
hazardous beyond the time of contract performance—and
we have been given no reason to infer such confidence—a
contract-termination temporal limit (i.e., excluding govern-
ment compensation if and when harm occurred after ter-
mination) would undermine the declared statutory
purposes “to protect the public” and to remove an im-
portant deterrent to private investment in nuclear energy.
PAA, 71 Stat. at 576 (amending AEA § 2); see S. REP . 85-
256, at 16 (recognizing the government’s “primary concern”
of protecting the public, that “the steady exposure to radi-
ation, such as from an undetected leak of radioactive ma-
terials from a storage bin” cannot be “pinpointed in time,”
that covered incidents do not “necessarily have to occur
within any relatively short period of time,” and (discussing
licensees) that “[t]he indemnity agreements are intended
to cover damages caused by nuclear incidents for which
there may be liability no matter when the damage is dis-
covered, i.e., even after the end of the license”); S. REP . 100-
218, at 2 (1987) (later committee’s understanding of PAA
as “remov[ing] the deterrent of potentially catastrophic li-
ability,” including through “channeling of liability” provi-
sions that indemnify “any person who might be held liable
for public liability resulting from a nuclear incident”).
Washington, and Director, Office of Scientific Research and
Development); New York v. United States, 505 U.S. 144,
149–50 (1992) (observing that even “low level radioactive
waste” “must be isolated from humans for long periods of
time, often for hundreds of years”); Natural Resources De-
fense Council, Inc. v. U.S. Nuclear Regulatory Commission,
685 F.2d 459, 467–68 n.14, 469 (D.C. Cir. 1982) (noting
long-term hazards from radioactive wastes).

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COTTER CORP., N. S. L. v. US 25
The breadth of the foregoing terms, apparent from
their definitions, is emphasized by the evident contrast of
key definitions with immediately neighboring standards.
In particular, as recited above, in 1962 Congress amended
the definitions of “person indemnified” and “nuclear inci-
dent” to retain the 1957 language for domestic occurrences
while pointedly narrowing the scope for foreign occur-
rences. See supra Part I.A. For the latter, “person indem-
nified” reached a person other than the contractor only if
that person’s exposure to public liability was “by reason of
his activities under any contract with the [AEC]” or certain
other “project[s]” (including under subcontracts or the
like). PAA-amended AEA § 11(r) (after 1962 amendment)
(emphasis added). In a similar way, for “nuclear incident,”
Congress retained the pre-existing scope for domestic oc-
currences (with a clarification that stressed breadth), while
adopting a narrow scope for most foreign occurrences—ap-
plying to a foreign occurrence only if it “involves a facility
or device owned by, and used by or under contract with, the
United States.” PAA-amended AEA § 11(o) (after 1962
amendment) (emphasis added). The adoption of those nar-
rower standards for foreign occurrences (where the harm
will typically fall on another country’s “public”), combined
with their conspicuous absence from the adjacent domestic-
occurrence language, confirms the breadth of the domestic-
occurrence language. Cf. Russello v. United States, 464
U.S. 16, 23 (1983) (stating that “when Congress includes
particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the dis-
parate inclusion or exclusion”); Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 452 (2002) (same); Collins v. Yellen, 594
U.S. 220, 248 (2021) (same).
Here, as the case is presented to us, Cotter incurred
liability through its settlement with the McClurg plaintiffs
based on allegations that it injured members of the public
in the St. Louis area by releasing, between 1969 and 1973,

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COTTER CORP., N. S. L. v. US 26
radioactive materials and residues originally produced by
Mallinckrodt for the government under the AEC-
Mallinckrodt contract. McClurg Second Amended Compl.
at 3–4 ¶¶ 6–12, 4–5 ¶¶ 16–20, 25–26 ¶¶ 70–72; Public Re-
dacted Compl. at 9–13 ¶¶ 36–52; see supra Parts I.B.2, I.C.
Taking all well-pleaded factual allegations before us as
true, we conclude that Cotter is a “person indemnified”
seeking indemnity for a “public liability.”
4
We also answer the remaining question under § 170(d)
in Cotter’s favor. We conclude that Cotter has pleaded
enough to proceed past the dismissal stage on the question
of whether the public liability Cotter incurred was one
“arising out of or in connection with the contractual activ-
ity” of performance of the AEC-Mallinckrodt contract, a
contract that (as we have noted) undisputedly included an
indemnity agreement. The parties read the phrase as
meaning “arising out of” or “in connection with,” but it
might be understood as meaning “arising out of” or “arising
in connection with.” For present purposes, we do not see
that the precise parsing makes a difference, including be-
cause “arising in connection with” would encompass “aris-
ing out of.”
The “arising out of” phrase alone clearly requires that
what follows the phrase (here, the contractual activity) was
the cause (sometimes, just one of the causes) of what pre-
cedes the phrase (here, the public liability of the indemnity
claimant). See, e.g., Ford Motor Co. v. Montana Eighth Ju-
dicial District Court, 592 U.S. 351, 361–62 (2021); United
States v. Shearer, 473 U.S. 52, 54–55 (1985). The concept
of causation often combines but-for causation and an addi-
tional limit often called “proximate” causation, which pre-
vents attribution to a “remote cause.” Bank of America
Corp. v. City of Miami, 581 U.S. 189, 201 (2017) (citation
omitted); Lexmark International Inc. v. Static Control
Components, Inc., 572 U.S. 118, 132–33 (2014); see also

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COTTER CORP., N. S. L. v. US 27
Burrage v. United States, 571 U.S. 204, 210 (2014) (explain-
ing that “[t]he law has long considered causation a hybrid
concept, consisting of two constituent parts: actual cause
and legal cause,” which is “often called the ‘proximate
cause’”) (citations omitted); Rite-Hite Corp. v. Kelley Co., 56
F.3d 1538, 1546 (Fed. Cir. 1995) (en banc). We have ex-
plained, in the patent-damages setting, that “‘reasonable,
objective foreseeability’ is ‘generally’ sufficient for proxi-
mate causation, while indicating that a different conclu-
sion might be justified if there is ‘a persuasive reason to the
contrary.’” Brumfield, Trustee for Ascent Trust v. IBG LLC,
97 F.4th 854, 877 (Fed. Cir. 2024) (quoting Rite-Hite, 56
F.3d at 1546); see also CSX Transportation, Inc. v.
McBride, 564 U.S. 685, 702–04 (2011) (discussing reasona-
ble foreseeability’s role in proximate-cause analysis). As
reflected in that formulation, a particular statutory context
may alter the general standard for proximate causation.
See Bank of America, 581 U.S. at 201–04; see also Husted
v. A. Philip Randolph Institute, 584 U.S. 756, 769 (2018).
The “in connection with” phrase (alone or viewed as
part of “arising . . . in connection with”) undoubtedly broad-
ens the reach of the overall clause at issue here. The
phrase, we have repeatedly recognized in another context,
is on its face “very sweeping in scope.” RAMCOR Services
Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir.
1999); see Acetris Health, LLC v. United States, 949 F.3d
719, 728 (Fed. Cir. 2020); Diaz v. United States, 853 F.3d
1355, 1357–58 (Fed. Cir. 2017); Palladian Partners, Inc. v.
United States, 783 F.3d 1243, 1254 (Fed. Cir. 2015); Dis-
tributed Solutions, Inc. v. United States, 539 F.3d 1340,
1345 (Fed. Cir. 2008). Relatedly, in the AEA context, Con-
gress in 1961 changed the language of AEA § 152, 42
U.S.C. § 2082, to delete “in connection with” from a list that
included “in the course of” and “under” and also to delete
“or other relationships with the [AEC]” from a list that in-
cluded “any contract,” “subcontract,” and “arrangement.”
Pub. L. 87-208, 75 Stat. 475, 477 (Sept. 6, 1961). Congress

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COTTER CORP., N. S. L. v. US 28
did so, we have recognized, because the deleted language
was “unclear and possibly too sweeping.” Fitch v. Atomic
Energy Commission, 491 F.2d 1392, 1395–96 (CCPA 1974)
(quoting H.R. REP . 87-963, at 8 (1961), 1961 U.S.C.C.A.N.
2591, 2597). In contrast, Congress did not change the “aris-
ing out of or in connection with” language of § 170(d) when
it enacted the 1962 amendments introducing the domes-
tic/foreign distinction. See 42 U.S.C. § 2210(d) (where this
language remains); supra Part I.A.
The Supreme Court has stated that “[t]he phrase ‘in
connection with’ is essentially ‘indeterminat[e]’ because
connections, like relations, ‘stop nowhere.’” Maracich v.
Spears, 570 U.S. 48, 59–60 (2013) (quoting New York State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Insurance Co., 514 U.S. 645, 655 (1995)) (second alteration
in original); cf. Ford Motor, 592 U.S. at 361–62. As a result,
the phrase, when used in any given statutory setting, needs
to be, and has been, construed to respect not only its
breadth but also the particular statute’s structure, other
provisions, and objectives. Maracich, 570 U.S. at 59–60;
see New York State Conference, 514 U.S. at 656; California
Division of Labor Standards Enforcement v. Dillingham
Construction, N.A., Inc., 519 U.S. 316, 324–25 (1997); cf.
Ford Motor, 592 U.S. at 361–62 (noting that the phrase
“arise out of or relate to” in precedent goes beyond a “strict
causal relationship” but “does not mean that anything
goes”).
Under those standards, which obviously do not create
a bright-line rule, the materials proper for consideration on
the motion to dismiss, including the complaint’s allegations
(which we must take as true at this stage), suffice to pre-
clude dismissal here. The AEC-Mallinckrodt contractual
activity of creating the nuclear material at issue was a but-
for cause of the public liability, because that material,
which was inherently dangerous, was the source of the nu-
clear incident giving rise to Cotter’s public liability. That
is so even though there were other but-for causes, such as

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COTTER CORP., N. S. L. v. US 29
Cotter’s own actions (or omissions) involving that material.
See Bostock v. Clayton County, 590 U.S. 644, 656 (2020)
(“Often, events have multiple but-for causes.”).
The path from the contractual activity to the nuclear
incident was not a long or tortuous one. Indeed, the AEC-
Mallinckrodt contract itself had not yet terminated when
the material was sold to Cotter. See supra Part I.B; J.A.
814 (1966 SA No. 129, stating that contract work continued
through June 30, 1967); J.A. 1114 (Cotter’s purchase agree-
ment entered into on June 9, 1967). The path involved the
February 1966 transfer of the materials by the govern-
ment—as owner, seeking to avoid having to dispose of the
material itself—to a company that quickly folded, causing
the materials to pass to the foreclosing (financing) company
for a brief time before, in June 1967, the materials were
put into the hands of Cotter, which was in the relevant line
of work and which secured an AEC license for that work in
December 1969, as legally required. See supra Part I.B.2.
On the facts alleged, the contractual activity need not be
deemed “remote” from the nuclear incident, Bank of Amer-
ica, 581 U.S. at 201, that is alleged by the McClurg plain-
tiffs (regarding Cotter) to have begun in 1969. The
relevant record lays out extensive facts or alleged facts
about the nature of the material, the statutory require-
ment of obtaining a license, the contract provisions and
government actions recognizing a need for careful long-
term management of the materials, and even the govern-
ment’s awareness that an initial transferee might default
(hence that a subsequent transfer might be needed). See,
e.g., Public Redacted Compl. at 5–6 ¶¶ 16–23; J.A. 45 (1943
contract Article 4), 62 (1943 contract Article 33), 288–300
(1950 SA No. 45), 662 (1955 SA No. 110), 773 (1961 SA
No. 122), 789–90 (1962 SA No 126); see generally supra
Parts I.B, II.A.3. On this record, we have been given no
basis for ruling that it is implausible that the eventual ex-
posure of the public in the asserted nuclear incident meets
a standard of “reasonable, objective foreseeability.” Rite-

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COTTER CORP., N. S. L. v. US 30
Hite, 56 F.3d at 1546. This is not a case, on the record pre-
sented and considering the Rule 12(b)(6) standard, where
we can say that the connection at issue is so “thin” that it
goes beyond a “cutoff” point of the statutory phrase. See
Travelers Indemnity Co. v. Bailey, 557 U.S. 137, 149 (2009).
This conclusion readily serves, rather than under-
mines, the declared and evident purpose of the statutory
provision at issue, which is relevant to confirming that “in
connection with” can apply here. The purpose of § 170(d)
was a broad one—to indemnify private-sector participants
involved in the nuclear-energy industry for risks of nuclear
incidents, and hence of liability, that were high enough
that Congress recognized that the risk was significantly de-
terring private investment. The aim of the government in-
demnification was a dual one: to guarantee the (domestic)
public compensation for harm if such an incident occurred;
and to induce private-sector investment in work Congress
deemed of great value to the country. See supra Parts I.A.,
II.A.3. Applying the “arising out of or in connection with”
phrase on the record here furthers the declared purpose of
the statutory provision of indemnification.
For the foregoing reasons, we reverse the dismissal of
the claim for indemnity under § 170(d).
B
We also reverse the dismissal—for lack of jurisdiction
(because of lack of standing) and, in the alternative, for fail-
ure to state a claim—of Cotter’s claim for contractual in-
demnification.
1
The jurisdictional (standing) dismissal rested solely on
the Claims Court’s determination that Cotter failed to es-
tablish, in response to the government’s Rule 12(b)(1) facial
challenge, that it was a third-party beneficiary of the In-
demnification Agreement—and therefore did not come
within the Tucker Act provision providing jurisdiction to

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COTTER CORP., N. S. L. v. US 31
hear a damages claim founded “upon any express or im-
plied contract with the United States,” 28 U.S.C.
§ 1491(a)(1). Claims Court Opinion, at 151–52. There is
no dispute, and it is clear, that Cotter had constitutional
and Tucker Act standing if it did allege enough to make it
a third-party beneficiary under motion-to-dismiss stand-
ards. To defeat the government’s motion to dismiss under
Rule 12(b)(1), Cotter was “merely required to set forth a
non-frivolous allegation of breach of a contract with the
government.” Columbus Regional Hospital v. United
States, 990 F.3d 1330, 1341 (Fed. Cir. 2021). The complaint
readily meets that low standard, as its allegation that it is
among the class of intended beneficiaries of the contractual
provision promising indemnity (using “persons indemni-
fied” language like that of PAA-amended AEA § 170(d)) is
not frivolous. The Claims Court erroneously applied what
amounts to the higher Rule 12(b)(6) standard of plausible
allegations supporting relief. Claims Court Opinion, at
151–52. It was improper to dismiss this claim for lack of
jurisdiction. We may and do, however, convert the govern-
ment’s argument against Cotter having the status of a
third-party beneficiary into an argument for dismissal un-
der Rule 12(b)(6). Columbus Regional Hospital, 990 F.3d
at 1342.
2
With that conversion, we address the two grounds for
dismissal for failure to state a claim—that, under the
pleading standard applicable under Rule 12(b)(6), Cotter
was not an “intended third-party beneficiary” of the AEC-
Mallinckrodt Indemnification Agreement; and that Cotter
had failed sufficiently to allege breach by the government
of the indemnity obligation because it failed to give the gov-
ernment assertedly required notice. Claims Court Opin-
ion, at 151–52. We reject both grounds for dismissal.

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COTTER CORP., N. S. L. v. US 32
a
Cotter has alleged sufficient facts to make plausible its
claim that it is an intended third-party beneficiary of the
Indemnification Agreement. That agreement, quoted in
significant part supra Part I.B.1, used language substan-
tially the same as the language we have discussed in re-
jecting the dismissal of the claim for indemnification under
PAA-amended AEA § 170(d). J.A. 780–82 (1962 SA No.
124). The Indemnification Agreement incorporated the rel-
evant statutory definitions, of “person[s] indemnified,”
“public liability,” and “nuclear incident.” J.A. 780; Public
Redacted Compl. at 7 ¶ 27. It also stated that “the Com-
mission will and does hereby indemnify the Contractor,
and other persons indemnified, against (i) claims for public
liability as described . . . and (ii) the reasonable costs of in-
vestigating and settling claims, and defending suits for
damage for such public liability.” J.A. 781 (emphasis
added); Public Redacted Compl. at 7–8 ¶ 28. The “public
liability” had two requirements—that it “arises out of or in
connection with the contractual activity” and that it “arises
out of or results from” one of four specified “nuclear inci-
dents,” including a “nuclear incident which involves items
(such as equipment, material, facilities, or design or other
data) produced or delivered under this contract.” J.A. 781–
82 (emphasis added); Public Redacted Compl. at 8 ¶ 29.
On the well-pleaded allegations discussed above, as we
have concluded supra Part II.A, Cotter was a “person in-
demnified” against the liability at issue here. Our conclu-
sion about Cotter’s coverage by statutory language that is
materially identical to the contract language means that
Cotter was a person expressly stated by the contract to be
a direct beneficiary, as among the indemnitee class, of the
contract’s indemnity obligation. That is sufficient for Cot-
ter to pass the test for third-party-beneficiary status at the
Rule 12(b)(6) stage. See Columbus Regional Hospital, 990
F.3d at 1345 (“The test for third-party beneficiary status is
whether the contract reflects the intent of the contracting

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COTTER CORP., N. S. L. v. US 33
parties to benefit a third party. . . . The intended benefit
must be direct.”) (citation omitted).
In rejecting Cotter’s entitlement to such status, the
Claims Court principally relied on its rejection of the stat-
utory analysis we have adopted. It also pointed to provi-
sions in the bill of sale between AEC and Continental and
in the purchase agreement between Commercial (Conti-
nental’s transferee upon foreclosure) and Cotter. Claims
Court Opinion, at 149–50. The AEC-Continental bill of
sale passed title of the material to Continental and stated
that the material was sold “as is” and that the government
did not warrant that the material would “not result in in-
jury or damage.” J.A. 1107–08. The Commercial-Cotter
purchase agreement passed title of the material to Cotter
and included provisions for Cotter and Commercial to in-
demnify each other for liability resulting from certain ac-
tivities. J.A. 1114–15; J.A. 1132–34. But those documents
do not end the government’s indemnification duties or oth-
erwise make Cotter’s allegation of third-party-beneficiary
status implausible.7
The Indemnification Agreement provided for indemni-
fication of public liability arising out of a nuclear incident
that involves materials “produced or delivered under this
contract,” without requiring that such materials continue
to be owned or under the control of the government or
7 The government also points to the AEC-
Continental bill of sale’s provision stating that “there are
no prior agreements, understandings, or covenants be-
tween the Government and the Purchaser . . . which are
not set forth herein.” J.A. 1108–09; Government Response
Br. at 11, 37. That language, effectively an integration
clause, merely precludes either party from relying on prior
bids (detailed in the sentence immediately preceding the
one quoted). J.A. 1108; see Public Redacted Compl. at 5
¶ 17, 6 ¶ 21.

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COTTER CORP., N. S. L. v. US 34
Mallinckrodt. J.A. 782 (1962 SA No. 124). It also did not
limit indemnification to the period of the Mallinckrodt con-
tract; to the contrary, it stated that “[t]he obligations of the
Commission . . . shall be unaffected . . . by the completion,
termination or expiration of this contract.” J.A. 783 (1962
SA No. 124). And the government made that drafting
choice even while it was actively trying to sell the nuclear
materials to private companies and had included provi-
sions in the Mallinckrodt contract that explicitly contem-
plated sale of materials to third parties. Public Redacted
Compl. at 7 ¶ 25; see, e.g., J.A. 708 (1955 SA No. 115, Arti-
cle X ¶ 4), 733 (1955 SA No. 115, Schedule D ¶ 2(a)–(b)).
In these circumstances, the Claims Court erred in
denying Cotter third-party-beneficiary status in ruling on
the motion to dismiss.
b
Cotter also sufficiently alleged facts that plausibly sup-
port an inference that the government breached the con-
tract. The Claims Court and the government seem to make
two different contentions about deficiencies on Cotter’s
part that preclude any assertion of a breach even at this
stage—first, that Cotter never made a pre-suit demand for
indemnity to the government, and second, that Cotter did
not satisfy certain contractual notification-of-litigation re-
quirements. Claims Court Opinion, at 151–52; Govern-
ment Response Br. at 56–61. At least for purposes of the
motion to dismiss here, we reject those arguments.
The government identifies nothing in the contract, or
in any applicable statutory or decisional law, that supports
its first point. The contract does not include a pre-suit-de-
mand requirement, or a similar exhaustion requirement to
request and obtain a contracting officer’s decision, as a pre-
condition to suing on (what we here must assume is) the
indemnity duty owed to Cotter. See J.A. 780–84 (1962 SA
No. 124). Nor does the government identify any applicable
law that imposes such a requirement. Compare, e.g., 28

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COTTER CORP., N. S. L. v. US 35
U.S.C. § 2675 (Federal Tort Claims Act); 41 U.S.C.
§ 7103(a)(3) (Contract Disputes Act). Nor, further, does it
identify a basis for dismissing a suit for breach because of
a lack of such a pre-suit demand when it is clear (based on
the Department of Energy’s letter to the Missouri court and
the government’s position here) that any demand would
have been futile.
The government also has not persuasively shown that
any contract provision required more notice of the public-
liability litigation (the McClurg litigation) than it received
in this matter, or persuasively shown that the indemnity
obligation disappears when such notice is deficient, even
when it is clear that additional notice would not have
changed the government’s refusal to indemnify. The record
indicates that, consistent with the Indemnification Agree-
ment, J.A. 782–83 (1962 SA No. 124, citing J.A. 711–12,
1955 SA No. 115, Article XIV on Litigation and Claims),
the government received notice of the McClurg claims be-
fore the present action was filed. Settlement Order at 1–2;
DOE Letter at 1–2; Public Redacted Compl. at 10 ¶ 38, 12
¶¶ 46–47. Moreover, several provisions of the Indemnifi-
cation Agreement and the AEC-Mallinckrodt contract af-
firmatively suggest that failures-of-notice formalities do
not negate the indemnity obligation. J.A. 783 (1962 SA No.
124, stating: “The obligations of the [AEC] under this arti-
cle shall not be affected by any failure on the part of the
Contractor to fulfill any of its obligations under this con-
tract.”), 691–92 (1955 SA No. 115, Article V ¶ 2(j), stating
that “failure to comply with the requirements . . . relative
to the reporting of an action or claim or the furnishing of
copies of papers” did not preclude reimbursement by the
government of the settlements, losses, and expenses re-
lated to those claims; and stating that “the refusal of the
[AEC] to authorize or approve the defense or settlement of
any claim or action against the Contractor . . . shall not pre-
clude a later determination of whether or not any settle-
ment of such claim or action by the Contractor or the

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COTTER CORP., N. S. L. v. US 36
expense of defending such claim or action . . . or any final
judgment, award or allowance as a result of any such action
or claim” can be considered an allowable expense that the
government must pay).
On the arguments and record presented to us, we con-
clude that Cotter adequately alleged a breach of contract.
III
For the foregoing reasons, we reverse the Claims
Court’s decision and remand the case.
Costs awarded to Cotter.
REVERSED AND REMANDED

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