Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00595-ECH

Document 24

Filed 09/01/2004

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiff, ) ) v. ) No. 01-595C ) (Judge Hewitt) THE UNITED STATES, ) ) Defendant. ) ____________________________________) JOINT STATUS REPORT AND MOTION TO CONTINUE STAY Pursuant to RCFC 7(b) and this Court's Order dated June 18, 2003, the parties submit this joint status report and motion to continue the stay of all proceedings in this case until such time as the parties in Florida Power & Light Co. v. United States (Florida Power), No. 96-644C (Miller, J.), have exhausted all opportunities for appeal. The utility plaintiffs in the Florida Power case appealed Judge Miller's May 28, 2003 decision granting the government's motion for entry of judgment on the record and dismissing the utility plaintiffs' claims. On June 15, 2004, the Federal Circuit vacated the CFC's judgment in favor of the government and remanded the case for a determination of (1) the "reasonable period of time" over which the government's alleged cumulative loss was to be recovered; and (2) whether the government's alleged losses, if amortized over this period, were sufficient to permit the government to charge a price at or near the ceiling price during the so-called transition period.1 NORTHEAST UTILITIES SERVICE CO.

1

A copy of the Federal Circuit's June 15, 2004 opinion, No. 03-5127, is appended hereto as Attachment A.

Case 1:01-cv-00595-ECH

Document 24

Filed 09/01/2004

Page 2 of 3

In their June 18, 2003 Joint Status Report and Motion to Continue Stay, the parties to the instant litigation represented that because the Florida Power litigation raises some of the same questions of fact and law that are present in this case (and that a ruling in that case may be dispositive of some of the issues in the this case), a continuance of the stay in this case would be warranted. Accordingly, the Court entered an Order suspending all proceedings in this case until thirty days after the appellate disposition of Florida Power was no longer reviewable, at which point the Court anticipated the parties would be prepared to outline their intentions with respect to the disposition of this case. However, the parties now agree that in light of the most recent remand in Florida Power, the most appropriate course of action would be to continue the stay in this case until such time as the CFC's judgment in Florida Power is no longer reviewable. Therefore, in the interests of conserving the resources of the parties and the Court, the parties respectfully request continuation of the stay and that no briefs or motions be required in this case until forty-five days after the time for appeal of the CFC's judgment in Florida Power shall have expired, or if that judgment is appealed, then until forty-five days after the appellate disposition of that case is no longer reviewable, at which time the parties shall file a joint status report indicating their proposed course of action for disposition of this case, including the timing of defendant's response to the Complaint.

2

Case 1:01-cv-00595-ECH

Document 24

Filed 09/01/2004

Page 3 of 3

Dated: September 1, 2004

Respectfully submitted,

Of Counsel for Plaintiff: Michael R. Miner Spriggs & Hollingsworth

/s/ Jerry Stouck JERRY STOUCK Spriggs & Hollingsworth 1350 I Street, N.W. Ninth Floor Telephone: (202) 898-5800 Fax: (202) 682-1639 Attorney of Record for Plaintiff

ROBERT D. MCCALLUM, JR., Assistant Attorney General J. CHRISTOPHER KOHN, Director /s/ James G. Bruen, Jr. JAMES G. BRUEN, Jr., Special Litigation Counsel U.S. Department of Justice Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, DC 20044 Telephone: (202) 307-0493 Fax: (202) 307-0494 Attorneys for Defendant

Of Counsel for Defendant: Matthew J. Troy Commercial Litigation Branch Civil Division Department of Justice Marc E. Kasischke Office of the General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

3