Free Response - 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 NUCLEAR VERMONT YANKEE, LLC, et al., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 03-2663C (Judge Hodges)

DEFENDANT'S RESPONSE TO THE COURT'S JANUARY 15, 2004 ORDER Defendant, the United States, respectfully submits this response to the Court's order dated January 15, 2004, in which the Court requested that the parties identified "whether they wish to enter a pretrial schedule." The Court issued the same

order in both Vermont Yankee Nuclear Power Corp. v. United States, No. 02-89C (Fed. Cl.), and Entergy Nuclear Vermont Yankee, LLC v. United States , No. 03-2663C (Fed. Cl.). The plaintiffs in Vermont Yankee and Entergy Nuclear Vermont Yankee are suing the United States over the same contract. Specifically, according to Vermont Yankee Nuclear Power Corporation's ("Vermont Yankee's") complaint, Vermont Yankee held the Standard Contract at issue in this case until July 31, 2002, when it sold its nuclear power plant and assigned its Standard Contract to Entergy Nuclear Vermont Yankee, LLC ("Entergy"). 1 Both Vermont Yankee and Entergy are now seeking damages from the United States allegedly arising from the same breach by the

Pursuant to 42 U.S.C. § 10222(b)(3), "[t]he rights and duties of party" to the Standard Contract "may be assignable with transfer of title to the spent nuclear fuel and high-level radioactive waste involved."

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Government under the same contract.

Based upon the information

that the Government has at this time regarding the scope of Vermont Yankee's assignment to Entergy, it is not possible for us to determine whether it is necessary for the Court, in the Vermont Yankee case, to resolve the Government's pending partially dispositive motions. Depending upon the scope of the

assignment, it may be that the issues raised in those motions are applicable only to the Entergy Nuclear Vermont Yankee case. Counsel for plaintiff in both Vermont Yankee and Entergy Nuclear Vermont Yankee has recently provided us with copies of letters that Vermont Yankee provided to the Department of Energy ("DOE)", notifying DOE of its assignment to Entergy. However,

counsel for plaintiff informed us that he could not provide us with a copy of the purchase and sale agreement between Vermont Yankee and Entergy until a protective order was issued in this case. Although the Court issued a protective order in the

coordinated discovery proceedings, that order was apparently never expressly made applicable to either the Vermont Yankee or Entergy Nuclear Vermont Yankee cases. It appears that the details of the assignment from Vermont Yankee to Entergy are contained in the purchase and sale agreement. Accordingly, until we are able to obtain a copy of

that purchase and sale agreement, it is not possible to identify whether the Court should resolve the pending partially dispositive motions in the Vermont Yankee case or whether the assignment renders the motions here moot or otherwise
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unnecessary.

In their responses to the Court's order, Vermont

Yankee and Entergy have suggested that (1) the Court should proceed with the Vermont Yankee case "expeditiously" by ordering the completion of all existing briefing in that case (including briefing upon the Government's rate of acceptance brief) and by allowing Vermont Yankee to file a motion for summary judgment regarding liability, and (2) the Court should suspend pretrial matters in the Entergy Nuclear Vermont Yankee case until briefing of the Government's partially dispositive motions in Vermont Yankee has been completed. However, until it is determined

whether the scope of Vermont Yankee's assignment to Entergy renders any of those pending motions moot, it is premature to complete briefing upon those motions. To date, neither Vermont

Yankee nor Entergy has provided us with a copy of the purchase and sales agreement that defines the scope of their assignment. We respectfully request that the Court issue an order making the protective order that Judge Sypolt issued in the coordinated discovery proceedings applicable to both the Vermont Yankee and Entergy Nuclear Vermont Yankee cases. Counsel for plaintiff has

informed us that, once a protective order is issued in these cases, he will be able to provide us with a copy of the purchase and sales agreement between Vermont Yankee and Entergy. With

that document, we can evaluate the scope of Vermont Yankee's assignment and determine whether any issues raised in the Government's pending partially dispositive motions remain applicable to the Vermont Yankee case.
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Once that issue is

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resolved, the parties can attempt to agree upon a schedule for resolving issues in these two cases that are legal in nature and/or may be amenable to a dispositive motion. 2 Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director

Further, before Vermont Yankee completes its briefing in the Vermont Yankee case, the Government should be permitted an opportunity to supplement its prior briefing to address the Court's recent decisions issued in response to the Government's dispositive motions in other cases.
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s/ Harold D. Lester, Jr. 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 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 Attorneys for Defendant February 17, 2004

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CERTIFICATE OF FILING I hereby certify that on this 16th day of February 2004, a copy of foregoing "DEFENDANT'S UNOPPOSED MOTION FOR AN ENLARGEMENT OF TIME" 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. filing through the Court's system. Parties may access this

s/Harold D. Lester, Jr.