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

Case 1:00-cv-00703-EJD

Document 209

Filed 09/26/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on September 26, 2005) ________________________________________________ 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 July 25, 2005 Order, Plaintiff Power Authority of the State of New York ("NYPA") and Defendant, the United States, respectfully and jointly submit this status report to request that this case remain stayed. The Court's July 25, 2005 Order stayed this case until 30 days after the United States Court of Appeals for the Federal Circuit ("Federal Circuit") ruled upon the appeal of this Court's decision in Indiana Michigan Power Co. v. United States, No. 98-486C ("Indiana Michigan"). The Order also instructed the parties to file a joint status report on December 15, 2005 or "within 15 days after the decision in Indiana Michigan, whichever is earlier." The Federal Circuit issued its decision in Indiana Michigan on September 9, 2005, thus triggering the parties' obligation to file a joint status report at this time. For reasons explained below, NYPA has proposed and the Government has agreed that the stay in this case be extended through June 30, 2006. A continued stay of this case is warranted because the time period within which either party may seek reconsideration and/or rehearing of the Federal Circuit's decision in Indiana Michigan does not expire until October 24, 2005. The Federal Circuit's mandate will not issue

Case 1:00-cv-00703-EJD

Document 209

Filed 09/26/2005

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until after that deadline passes. The uncertainty surrounding the parties' response, if any, to the Federal Circuit's decision warrants a further suspension of this case at this time. Just as importantly, the ultimate disposition of the Indiana Michigan appeal ­ especially if the Federal Circuit's decision is reconsidered ­ may affect the scope of damages that NYPA may recover in the instant case as a matter of law. A stay in this case until June 30, 2006, will permit the parties sufficient time to decide upon a proposed course of action in this litigation. Additionally, most, if not all, of the records in support of NYPA's damages claim are located at Entergy Nuclear Fitzpatrick's offices in Jackson, Mississippi. Hurricanes Katrina and Rita have made access to those files difficult if not impossible until further notice. For this reason also, NYPA submits that an extension of the stay in this case is warranted.1

The parties understand that the plaintiffs in Entergy Nuclear Fitzpatrick, LLC v. United States, No. 03-2627C (a directly-related case) have also sought an extension of the stay of its case for this reason.

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Case 1:00-cv-00703-EJD

Document 209

Filed 09/26/2005

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For the foregoing reasons, therefore, the parties respectfully request that the Court suspend this case through June 30, 2006.

Dated: September 26, 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 (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 Plaintiffs 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

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

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

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