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

Case 1:00-cv-00703-EJD

Document 222

Filed 01/07/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on January 7, 2008) ________________________________________________ POWER AUTHORITY OF THE STATE OF NEW YORK, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 00-703C (Chief Judge Damich)

JOINT STATUS REPORT Pursuant to the Court's July 16, 2007 Order, Plaintiff and Defendant, the United States, respectfully and jointly submit this status report "recommending how they propose to proceed" and recommend the continuation of the stay in this case. The parties have contemporaneously filed a joint motion to continue the stay. As detailed in prior status reports, several of the spent nuclear fuel ("SNF") damages cases in this Court are currently or will soon be before the U.S. Court of Appeals for the Federal Circuit (the "Federal Circuit"). The resolution of these cases on appeal could inform the Court's adjudication of the instant action. Hence, the parties agree that a continuation of the indefinite stay in this case is appropriate. The Federal Circuit heard oral argument on December 3, 2007, in Nebraska Pub. Power Dist. v. United States, No. 2007-5083. Oral arguments have been calendared by the Federal Circuit for February 4, 2008 in three other spent nuclear fuel appeals: (1) Yankee Atomic Elec. Co. v. United States, 73 Fed. Cl. 249 (2006), appeal pending, Nos. 2007-5025, 2007-5026, 2007-

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5027, 2007-5031, 2007-5032, 2007-5033 (Fed. Cir.); (2) Pacific Gas & Elec. Co. v. United States, 73 Fed. Cl. 333 (2006), appeal pending, No. 2007-5046 (Fed. Cir.); (3) Sacramento Mun. Util. Dist. v. United States, 70 Fed. Cl. 332 (2006), appeal pending, No. 2007-5052 (Fed. Cir.). The resolution of these cases on appeal may inform the instant case. Since the parties submitted their June 29, 2007 status report, three trial decisions at the Court of Federal Claims have been finalized after motions for reconsideration were denied. Northern States Power Co. v. United States, 78 Fed. Cl. 449 (2007), reconsideration denied, slip op. (Fed. Cl. Dec. 12, 2007); System Fuels, Inc. v. United States, 79 Fed. Cl. 37 (2007), reconsideration denied, 79 Fed. Cl. 182 (2007); Southern Nuclear Operating Co. v. United States, 77 Fed. Cl. 396 (2007), reconsideration denied, 79 Fed. Cl. 135 (2007). Judge Braden has issued a trial decision in System Fuels, Inc. v. United States, 78 Fed. Cl. 769 (2007), but entry of judgment awaits the completion of additional proceedings to determine damages relating to that utility's cost of capital. Additionally, three trials have occurred, the latter two of which have not completed post-trial briefing. Boston Edison Co. v. United States, No. 99-447C (Fed. Cl.) (Lettow, J.) (consolidated for a limited purpose at trial with Entergy Nuclear Generation Co. v. United States, No. 03-2626C (Fed. Cl.) (Lettow, J.)); Wisconsin Elec. Power Co. v. United States, No. 00-697C (Fed. Cl.) (Merow, S.J.); Carolina Power & Light Co. v. United States, No. 04-37C (Fed. Cl.) (Wheeler, J.). The ultimate resolution of these additional cases may also inform this case. Thus, consistent with the parties' representations in their previous joint status reports in this action, multiple spent fuel cases continue to proceed on various fronts that could inform the

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Court's resolution of various issues in this case. The parties respectfully submit that the indefinite stay in this case should be continued. Dated: January 7, 2008 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 (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, VA 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Power Authority of the State of New York JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Harold D. Lester, Jr. by s/ Daniel S. Herzfeld HAROLD D. LESTER, JR. Assistant Director s/ Scott Slater by s/ Daniel S. Herzfeld Scott Slater 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) 616-0467 Fax: (202) 307-2503 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

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