Free Motion for Reconsideration - District Court of Federal Claims - federal

Case 1:01-cv-00551-BAF

Document 126

Filed 02/10/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on February 10, 2005) ) ) ) ) ) ) ) ) ) ) ) )

PSEG NUCLEAR, L.L.C. and PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant.

No. 01-551C (Judge Futey)

PLAINTIFF'S MOTION FOR RECONSIDERATION Plaintiffs PSEG Nuclear, L.L.C. and Public Service Electric and Gas Company (together, "PSEG"), by and through their undersigned counsel, respectfully move this Court pursuant to RCFC 59 to reconsider and vacate the Opinion and Order entered in this action on January 31, 2005 (Sypolt, J.), in which the Court concluded that it lacked subject matter jurisdiction over this breach-of-contract action and dismissed the action because it could not have been timely filed ­ at the time it was filed in this Court ­ in the U.S. Court of Appeals for the District of Columbia Circuit under Section 119 of the Nuclear Waste Policy Act. The grounds for this motion, as more fully set forth in the accompanying memorandum, are that the Court committed a clear error of law in concluding, contrary to the decisions of the Federal Circuit and every other court that has ruled on this issue, that the Tucker Act does not provide this Court with subject matter jurisdiction over PSEG's damage claim against the United States for breach of contract. Reconsideration is appropriate to prevent the manifest injustice of dismissing this action without reaching the merits.

Case 1:01-cv-00551-BAF

Document 126

Filed 02/10/2005

Page 2 of 2

WHEREFORE, PSEG respectfully requests that the Court grant this motion, vacate the Opinion and Order of January 31, 2005, and proceed to the merits of this case.

Dated: February 10, 2005

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

Of Counsel: Jay E. Silberg David J. Cynamon Walter F. Zenner Michael G. Lepre Daniel S. Herzfeld Jack Y. Chu SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax)

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