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

Case 1:01-cv-00551-BAF

Document 134

Filed 05/20/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on May 20, 2005) PSEG NUCLEAR, L.L.C. and PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 01-551C (Senior Judge Futey)

JOINT STATUS REPORT Pursuant to this Court's April 22, 2005 Opinion and Order, Plaintiffs and Defendant respectfully submit this joint status report. The Court requested that the parties file this status report "concerning further proceedings." Plaintiffs and Defendant provide their responses to the Court below. PLAINTIFF'S RESPONSE In light of this Court's decision denying Plaintiffs' motion for reconsideration, on May 3, 2005 the Plaintiffs filed papers requesting that the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") act upon and grant Plaintiffs' petition for permission to appeal the jurisdictional decision rendered in this case. Accordingly, the Plaintiffs request that this case remain stayed pending the Federal Circuit's resolution of the jurisdictional issue. See Florida Power & Light Co. v. United States, 64 Fed. Cl. 37, 44 (2005) ("Plaintiffs' remaining claims are STAYED pending resolution of the jurisdictional issues raised in this opinion on appeal."). Plaintiffs object to moving forward with this case. Contrary to the Government's assertion below, the rulings of Judge Sypolt and this Court only dismissed Plaintiffs' breach of contract claim. See Florida Power, 64 Fed. Cl. at 44 (referring to the utilities' "breach of

Case 1:01-cv-00551-BAF

Document 134

Filed 05/20/2005

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contract" claims); see also PSEG Nuclear, L.L.C. v. United States, No. 01-551C, slip op. at 15 (Fed. Cl. Apr. 22, 2005) (denying the motion for reconsideration of Plaintiffs' "breach of contract claim"). Plaintiffs' takings and breach of the implied covenant of good faith and fair dealing claims remain before this Court. In the interest of efficiency and avoiding piecemeal litigation of the issues, this Court should await the Federal Circuit's resolution of the jurisdictional issue prior to resolving any pending motions before this Court, including the motion to dismiss the takings claim. Therefore, for the reasons stated above, the Plaintiffs respectfully request that this Court continue the stay until 30 days after the Federal Circuit's resolution of the jurisdictional issue, at which time the parties will file a joint status report proposing further proceedings for this case. DEFENDANT'S RESPONSE Defendant does not object to plaintiffs' request for a continued stay. However, the Government notes that, as a result of this Court's recent jurisdictional decision, only plaintiffs' takings claim remains to be decided by the Court. The Government's motion to dismiss plaintiffs' takings claim for failure to state a claim remains pending, and has been fully briefed. Should the Court determine that resolution of the Government's motion is the proper course of action, defendant does not object. Although plaintiffs have asserted that their implied duty of good faith and fair dealing claim remains pending before this Court, that implied duty is dependent upon the existence of a contract, and therefore is subject to the same jurisdictional prerequisites as those discussed in Judge Sypolt's January 31, 2005 order.

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Case 1:01-cv-00551-BAF

Document 134

Filed 05/20/2005

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Dated: May 20, 2005 Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 (202) 663-8000 (202) 663-8007 (fax)

Respectfully submitted, s/ Alex D. Tomaszczuk by s/ Daniel S. Herzfeld Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiffs PSEG Nuclear, L.L.C. and Public Service Electric and Gas Company

PETER D. KEISLER Assistant Attorney General s/ David M. Cohen by s/ Daniel S. Herzfeld DAVID M. COHEN Director s/ Harold D. Lester, Jr. by s/ Daniel S. Herzfeld HAROLD D. LESTER, JR. Assistant Director OF COUNSEL: JANE K. TAYLOR MARTHA S. CROSLAND Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 s/ Heide L. Herrmann by s/ Daniel S. Herzfeld HEIDE L. HERRMANN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 Attorneys for Defendant
Document #: 1324012 v.1

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