Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 333

Filed 08/13/2007

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 00-697C (Senior Judge Merow)

DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY Defendant, the United States, brings to the Court's attention the recent decision in Southern Nuclear Operating Co. v. United States, No. 98-614C (Fed. Cl. July 9, 2007), another spent nuclear fuel case. The Court's decision in Southern Nuclear supports the Government's position that the claim of plaintiff, Wisconsin Electric Power Company ("WEPCO"), that it is entitled to cost of capital damages is equivalent to a claim for prejudgment interest.1 In Southern Nuclear, this Court rejected plaintiffs' claims for cost of capital damages, slip op. At 65-71, which were premised in large part upon the same theory advanced in this case by WEPCO and upon testimony of the same expert, Kenneth Metcalfe, who is scheduled to testify in this case upon behalf of WEPCO. The Government has filed a motion for reconsideration of the decision in Southern Nuclear based upon issues other than that addressed above. The plaintiffs have not moved for reconsideration, and their time to do so has expired.

On February 2, 2007, the Government filed a motion for partial summary judgment seeking dismissal of WEPCO's cost of capital claim.

1

Case 1:00-cv-00697-JFM

Document 333

Filed 08/13/2007

Page 2 of 3

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy Independence Ave., S.W. Washington, D.C. 20585 ALAN J. LO RE Senior Trial Counsel STEPHEN FINN SONIA M. ORFIELD RUSSELL A. SHULTIS Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice August 13, 2007 s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Sharon A. Snyder by Russell A. Shultis 1000 SHARON A. SNYDER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Phone: (202) 305-9640 Fax: (202) 307-2503 Attorneys for Defendant

-2-

Case 1:00-cv-00697-JFM

Document 333

Filed 08/13/2007

Page 3 of 3

CERTIFICATE OF FILING I hereby certify under penalty of perjury that on August 13, 2007, a copy of this "DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY" 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/ Russell A. Shultis