Free Status Report - District Court of Federal Claims - federal

Case 1:03-cv-02663-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ENTERGY VERMONT YANKEE, LLC, et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 03-2663C (Judge Hodges)

DEFENDANT'S STATUS REPORT Pursuant to the Court's June 9, 2004 order, defendant, the United States, respectfully files this status report regarding the posture of the case. As plaintiff, Entergy Nuclear Vermont Yankee, LLC, ("ENVY"), correctly indicated in its status report to the Court, dated June 18, 2004, the parties are negotiating changes to the protective order entered by the Court. To ensure that there is a single

uniform protective order in all of the spent nuclear fuel cases, and to preclude the possibility that different protective orders will create inconsistent or conflicting obligations, we will request that the proposed changes be made to the protective order entered by Judge Sypolt in the coordinated discovery proceedings on May 8, 2002 and by judges in other cases since that time as well as to any protective orders to be entered in recently filed cases. Because of the potential effect of these proposed changes

and the Government's need for one protective order to apply in all of the spent nuclear fuel cases, the Government must negotiate these proposed changes with all 14 counsel that

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represent plaintiffs in spent nuclear fuel cases pending before the Court. The Government communicated its position on the

proposed changes to the protective order in a letter to counsel for ENVY dated June 8, 2004. We are awaiting a response and

expect to be able to provide a proposed revised protective order to the Court shortly. Until these issues regarding the protective order are resolved, ENVY is unwilling to provide copies of the purchase and sale agreement entered into by ENVY and Vermont Yankee Nuclear Power Corporation ("Vermont Yankee"), another plaintiff in a suit pending before the Court. Vermont Yankee Nuclear Power Corp. v. Once the Government receives copies

United States, No. 02-898C.

of these documents, the Government will analyze them to determine whether the Government may file a dispositive motion regarding Vermont Yankee's standing to bring suit under the Standard Contract. In the alternative, the Government's review of these

documents may lead to the conclusion that this case should be consolidated with the case filed by Vermont Yankee. Regarding whether ENVY should participate in the joint discovery proceedings discussed with Judge Sypolt at the April 30, 2004 conference, the Government believes that ENVY and Vermont Yankee should be included in the group of cases that were the subject of that proceeding. ENVY is one of the "recently If

filed" cases that were before Judge Sypolt at the hearing.

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the case moves forward independent of any further coordinated discovery proceedings, the Government will still be entitled to conduct discovery on schedule issues against ENVY. Finally, with regard to the scheduling of further proceedings, the Government notes that many of the recently filed spent fuel cases have been stayed until the end of the year to allow potential appeals from the Court's recent decision in Indiana Michigan Power Co. v. United States, No. 98-486C, and trials in Yankee Atomic Electric Co. v. United States, No. 98126C, Commonwealth Edison Co. v. United States, No. 98-621C, and Sacramento Municipal Utility District v. United States, No. 98614C, currently scheduled to begin in July and December 2004 and January 2005, respectively, to proceed. The Government suggests

that this case also be stayed until the end of the year.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 June 21, 2004 Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on this 21st day of June 2004, a copy of foregoing "DEFENDANT'S STATUS REPORT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/Marian E. Sullivan