Free Motion to Stay - District Court of Federal Claims - federal

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

No. 00-697C (Senior Judge Merow)

DEFENDANT'S MOTION TO STAY PROCEEDINGS Pursuant to Rule 7(b)(1) of the Rules of the United States Court of Federal Claims, defendant, the United States, moves the Court to stay all proceedings in this matter pending the outcomes of the appeals of (1) Pacific Gas & Electric Co. v. United States, No. 07-5046 (Fed. Cir. docketed Jan. 24, 2007); (2) Yankee Atomic Electric Co. v. United States, 73 Fed. Cl. 249 (2006), No. O7-5025-5031 (Fed. Cir. docketed Dec. 7, 2006), and its two companion cases; (3) Sacramento Municipal Utility District v. United States, No. 98-488C 2006 WL 3490940 (Fed. Cl. Dec. 1, 2006) (appeal filed Feb. 2, 2007); and (4) Nebraska Public Power District v. United States, No. M-843 (Fed. Cir. docketed Jan. 8, 2007). The Government seeks a stay for two reasons. First, the

Government believes a stay is in the best interests of the parties, and also will serve the interests of judicial economy, during the pendency of six appeals currently before the United States Court of Appeals for the Federal Circuit. Five of these

appeals, PG&E, SMUD, and the three Yankee Atomic appeals, are the

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result of trials held in other spent nuclear fuel cases filed in this Court. These earlier trials addressed various issues that

will also be addressed in the instant case and the resolution of these issues on appeal could significantly narrow the scope of the trial in this matter.1 For instance, plaintiff has made the

Government's performance obligation under the Standard Contract a key issue in this case. Plaintiff has argued that the Department

of Energy ("DOE") would have accepted fuel "at a rate sufficient to eliminate the need for [WEPCO] to construct additional storage at Point Beach after January 31, 1998 and to reduce the amount of SNF that had build up at Point Beach." See Wisconsin Electric

Power Company's Memorandum of Contentions of Fact and Law ("Pl.'s Br.") at 8-10. Thus, it contends that it would not have built a

dry storage facility ("ISFSI") had DOE performed, but would have simply acquired a temporary rack in order to offload a full core during the 1996-1998 period. Pl.'s Br. at 22-25. The Government

contends, to the contrary, that DOE was not obligated to accept spent nuclear fuel at any rate greater than that set forth in DOE's 1995 ACR. Therefore, for plaintiff to satisfy its burden

of proof on causation, the Court must decide this issue in plaintiff's favor. As plaintiff acknowledges, in PG&E, this Pl.'s

Court accepted the Government's theory regarding the rate.

In addition to these cases, this Court has heard very similar issues addressed in Southern Nuclear Operating Company v. United States, No. 98-614C (Fed. Cl. filed July 29, 1998). 2

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Br. at 24 n.16.

If that decision should be upheld on appeal, the

need for much of the parties' anticipated testimony, and for lengthy designations of deposition material, could be eliminated. The other matter before the Federal Circuit, with critical importance for this case, is the interlocutory appeal of Nebraska Public Power District v. United States, 73 Fed. Cl. 650 (2006), certified for interlocutory review, No. 01-116C, 2006 WL 3754809 (Fed. Cl. Dec. 19, 2006). In that case, this Court found that a

continuing writ of mandamus that the United States Court of Appeals for the District of Columbia Circuit issued, which prevents the Government from raising certain arguments relating to the "Unavoidable Delays" clause in the Standard Contract at issue here, is void ab initio and may be collaterally attacked in this Court. Id. It determined that the writ exceeded the

jurisdiction of the D.C. Circuit and is not supported by the necessary waiver of sovereign immunity. Id. If the Federal

Circuit were to affirm this decision, it would significantly alter the Government's presentation of its case at trial. The Government also seeks to stay this case because the Government has recently learned that the lead attorney on the case, Mr. Crawford, will be leaving our office prior to trial to take a position in Houston, Texas. Although a few other

attorneys have performed limited duties in assisting in the development of portions of this case, Mr. Crawford has conducted

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the majority of the work on the case to date, and his involvement would have been essential to the Government's ability to prepare for trial, as currently scheduled. For instance, the Government

has taken 36 depositions in this case totaling 52 days of testimony. Of these depositions, Mr. Crawford has taken 20 of Thus, the other

the depositions, totaling 33 days of testimony.

attorneys will be at a considerable disadvantage in preparing to examine numerous witnesses whose testimony at this point is only familiar to Mr. Crawford, and in gaining an understanding of the entirety of the case. For all of the foregoing reasons, the Government requests that the Court stay proceedings in this matter. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Acting Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

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OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

s/ Kevin B. Crawford KEVIN B. CRAWFORD 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

SONIA M. ORFIELD RUSSELL A. SHULTIS MARIAN E. SULLIVAN Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice February 5, 2007

Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that on February 5, 2007 a copy of this "DEFENDANT'S MOTION TO STAY PROCEEDINGS" 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. the Court's system. Parties may access this filing through

s/ Sonia M. Orfield