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

Case 1:00-cv-00703-EJD

Document 210

Filed 06/30/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on June 30, 2006) ________________________________________________ POWER AUTHORITY OF THE STATE OF NEW YORK, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 00-703C (Chief Judge Damich)

JOINT STATUS REPORT AND MOTION TO CONTINUE STAY Pursuant to the Court's October 5, 2005 Order, Plaintiff Power Authority of the State of New York ("NYPA") and Defendant, the United States, respectfully and jointly submit their status report to request that this case remain stayed. The Court's October 5, 2005 Order instructed the parties, on or before June 30, 2006, to "file a joint status report addressing with specificity how the case should proceed." For reasons explained below, NYPA has proposed and the Government has agreed that the stay in this case should be extended through December 31, 2006. 1 First, there is an appeal now pending before the United States Court of Appeals for the Federal Circuit (the "Federal Circuit") in PSEG Nuclear, L.L.C. v. United States, No. 05-5162, on whether this Court has jurisdiction over a breach-of-contract damages claim under the Tucker Act, 28 U.S.C. § 1491(a), a claim identical to NYPA's breach-of-contract damages claim in this case. Oral argument took place before the Federal Circuit in PSEG Nuclear on May 1, 2006. A decision by the Federal Circuit in PSEG Nuclear on jurisdiction could have a precedential effect here.
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The parties understand that the plaintiffs in Entergy Nuclear Fitzpatrick, LLC v. United States, No. 03-2627C (a directly-related case) have sought a similar extension of the stay of their case.
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Case 1:00-cv-00703-EJD

Document 210

Filed 06/30/2006

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Thus, the parties respectfully submit that their discussion of how this case should proceed should be deferred at least until the Federal Circuit issues a decision in PSEG Nuclear. Second, an extension of the stay in this case is desirable because counsel for the parties have been and will be extensively engaged in discovery and other pre-trial matters in several other spent nuclear fuel cases pending before this Court. For example, damages trials involving the undersigned counsel are currently scheduled to commence on September 18, 2006 in System Fuels, Inc. v. United States, No. 03-2624C (Braden, J.) (in which there is a discovery "cut-off" date of July 28, 2006) and on October 23, 2006 in Northern States Power Co. v. United States, No. 98-484C (Wiese, S.J.) (in which the Government's expert reports and the plaintiff's rebuttal expert reports will be due in July 2006 and August 2006, respectively). Counsel for the parties will also be engaged in multiple out-of-town depositions in these two cases during the next several weeks. Furthermore, they are working diligently to meet, over the next several months, various fact and expert discovery deadlines in System Fuels, Inc. v. United States, No. 03-2623C (Lettow, J.) and in Entergy Nuclear Indian Point 2, LLC v. United States, No. 03-2622C (Lettow, J.). Third, counsel for the parties are currently preparing briefs in Nebraska Pub. Power Dist. v. United States, No. 01-116C (Allegra, J.), on the issue of whether sovereign immunity issues have any bearing on the U.S. Court of Appeals for the District of Columbia's judgment and mandamus order in Indiana Michigan Power Co. v. Dep't of Energy, 88 F.3d 1272, 1273-74 (D.C. Cir. 1996), and in Northern States Power Co. v. Dep't of Energy, 128 F.3d 754, 757 (D.C. Cir. 1997), cert. denied, 525 U.S. 1016 (1998). In summary, multiple spent fuel cases are proceeding on various fronts that could either control or inform the Court's resolution of various key issues in this case.

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Case 1:00-cv-00703-EJD

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Thus, for the foregoing reasons, the parties respectfully request that the Court suspend this case through December 31, 2006.

Dated: June 30, 2006 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/ Jack Y. Chu 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

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. by s/ Jack Y. Chu HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 616-0478 Fax: (202) 307-2503 Attorneys for Defendant

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

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