Free Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00551-BAF

Document 167

Filed 07/20/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on July 20, 2007)

PSEG NUCLEAR, L.L.C. and PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant.

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No. 01-551C (Judge Futey)

PLAINTIFFS' STATUS REPORT Pursuant to this Court's June 11, 2007 order, the Plaintiffs file this status report to update the Court regarding the progress of the arbitration involving Plaintiff PSEG Nuclear, L.L.C. and its corporate sibling PSEG Power, L.L.C. (together "PSEG") and the plaintiffs in Delmarva Power & Light Company v. United States, Nos. 04-0034C & 04-0036C ("Delmarva Plaintiffs"). On June 20, 2007, the arbitration panel issued an opinion and order ("June 20 Award"), a copy of which is attached hereto. (Attachment 1). The June 20 Award rejected the Delmarva Plaintiffs' claims of waiver, laches, and delay, and held that the Delmarva Plaintiffs "assigned the takings claims at issue here to PSEG, and that ACE/Delmarva's initiation of its taking litigation and its refusal to dismiss that litigation breached the PAs." (June 20 Award at 24.) On June 25, 2007, PSEG filed a complaint in the Superior Court of New Jersey, Mercer County seeking confirmation of the June 20 Award. On July 2, 2007, the Superior Court of New Jersey, Mercer County, issued an order to show cause why the June 20 Award should not be confirmed and set a briefing schedule for the parties to respond to the show cause order.

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Case 1:01-cv-00551-BAF

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On July 2, 2007, the Delmarva Plaintiffs filed a Motion to Vacate Arbitration Ruling in their case in this Court (Nos. 04-0034C and 04-0036C), asking that Judge Miller set aside the June 20 Award and find that PSEG waived its right to enforce its rights under the PAs. On

July 12, 2007, the Delmarva Plaintiffs filed a motion in the New Jersey state court proceedings asking the court to stay those proceedings in favor of the Motion to Vacate Arbitration Ruling pending before Judge Miller. On July 17, 2007, the New Jersey state court issued an order permitting the Delmarva Plaintiffs to request a stay in their opposition to the July 2 order to show cause. The New Jersey state court set a hearing on the order to show cause for August 9, 2007, and scheduled a teleconference to discuss the status of Court of Federal Claims proceedings for August 1, 2007. The New Jersey state court declined to hear the stay issue separately or as an initial matter as requested by the Delmarva Plaintiffs. On July 19, 2007, PSEG filed with Judge Miller a Motion for Leave to Intervene for the Limited Purpose of Opposing Plaintiffs' Motion to Vacate Arbitration Award, along with its Opposition to the Delmarva Plaintiffs' Motion to Vacate Arbitration Ruling. A copy of these filings is also attached hereto (Attachments 2 and 3). On that same day (July 19), the Defendant also filed an Opposition to the Motion to Vacate. (Attachment 4). In light of the recent activities detailed above, Plaintiffs respectfully request that the stay remain in place in this case for a period of up to 60 additional days to allow for the completion of proceedings in the New Jersey state court and to allow Judge Miller the opportunity to consider the opposing positions submitted by the parties in the Delmarva case. Plaintiffs also request leave to inform the Court within 30 days of any decision by the New Jersey state court or Judge Miller. Counsel for the Defendant has stated that Defendant does not oppose this request for a continuing stay, provided the Delmarva and PSEG cases stay on the same procedural schedule,

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Case 1:01-cv-00551-BAF

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and leave to report within 30 days any ruling of the respective courts as to the merits of the matters summarized above. Dated: July 20, 2007 Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 (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, Virginia 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiffs PSEG Nuclear, L.L.C. and Public Service Electric and Gas Company

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