Free Motion for Reconsideration - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 197

Filed 10/03/2005

Page 1 of 4

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 MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 30, 2005 ORDER IN LIGHT OF SUBSEQUENT BINDING PRECEDENT AND MOTION FOR EXPEDITED CONSIDERATION Pursuant to Rule 59(a)(1) of the Rules of the Court of Federal Claims ("RCFC"), defendant, the United States, respectfully requests this Court to reconsider the ruling contained in its August 30, 2005 order permitting plaintiff to present evidence at trial regarding damages that it either has incurred or expects to incur from prior to January 31, 1998 through December 31, 2015, and that are attributable to the Government's partial breach of contract arising from its failure to commence acceptance of spent nuclear fuel prior to 2010. Wisconsin Electric Power Co. v. United States, No. 00-697C (Fed. Cl. August 30, 2005) ("August 30, 2005 order"). Because of the effect that the relief requested will have on the scope of the continuing fact discovery, defendant respectfully requests expedited consideration of this motion. The Court's August 30, 2005 order was issued prior to the decision of the United States Court of Appeals for the Federal Circuit in Indiana Michigan v. United States, No. 04-5122, 2005 WL 2173563 (Fed. Cir. Sept. 9, 2005). In that case, the Federal Circuit held that a utility's recovery of pre-breach damages in a partial breach action under the Standard Contract shall be limited to those mitigation costs incurred after May 25, 1994, the date that DOE published its

Case 1:00-cv-00697-JFM

Document 197

Filed 10/03/2005

Page 2 of 4

Notice of Inquiry in the Federal Register announcing its inability to begin timely spent nuclear fuel acceptance.1 2005 WL 2173563 at *8-9. The Federal Circuit further held that, in a partial breach action under the Standard Contract, a utility is precluded from recovery of any future damages that it expects to incur from the date of suit forward. 2005 WL 2173563 at *10-11 (partial breach damages "limited to those costs incurred prior to the date of suit). This Court issued a prior ruling similar to the August 30, 2005 order in Southern Nuclear Operating Co., et al. v. United States, No. 98-614C (Fed. Cl. December 20, 2004), and modified that ruling in an order entered as a result of a pretrial conference conducted after the Indiana Michigan decision. Southern Nuclear Operating Co., et al. v. United States, No. 98-614C (Fed. Cl. September 16, 2005). In focusing upon the issue of the presentation of evidence as to future damages, the Court's September 16, 2005 order in Southern Nuclear follows the Indiana Michigan holding by precluding the utility in that case from presenting evidence relating to future damages. App. at 1-2.2 Specifically, the Court's September 16, 2005 order in Southern Nuclear precluded the plaintiff in that case from presenting evidence relating to any damages incurred after December 31, 2004. Id. Although the Court permitted the plaintiff in Southern Nuclear to present evidence of costs incurred after the date plaintiff filed its cause of action, the Court acknowledged that it was only deviating from the rule established in Indiana Michigan because of the advanced stage of pretrial preparations in Southern Nuclear. Here, unlike Southern Nuclear, where the trial is but weeks away, there is nearly a year before trial. Thus, an application of the rule set forth in Indiana Michigan would not prejudice the parties. However,
1

The Federal Circuit also held that a utility's recovery of these pre-breach mitigation costs is limited to only those costs that it could prove were caused by DOE's delay in spent nuclear fuel acceptance.
2

"App. ____" refers to the attached appendix.

Case 1:00-cv-00697-JFM

Document 197

Filed 10/03/2005

Page 3 of 4

because it will provide a benefit to the Government by reducing the scope of damages that need to be investigated during the depositions that will be conducted during the period between October 6, 2005 and November 4, 2005, we request expedited consideration of this motion. CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court enter an order precluding plaintiff from claiming damages before May 25, 1994, or after November 16, 2000, the date that plaintiff filed its complaint. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

OF COUNSEL: JANE K. TAYLOR Office of the General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 ALAN J. LO RE Senior Trial Attorney RUSSELL A. SHULTIS SONIA M. ORFIELD Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

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 Tele: (202) 305-9640 Fax: (202) 307-2503 Attorneys for Defendant

October 3, 2005

Case 1:00-cv-00697-JFM

Document 197

Filed 10/03/2005

Page 4 of 4

CERTIFICATE OF FILING I hereby certify that, on October 3, 2005, a copy of foregoing "DEFENDANT'S MOTION FOR RECONSIDERATION OF THE COURT'S AUGUST 30, 2005 ORDER IN LIGHT OF SUBSEQUENT BINDING PRECEDENT AND MOTION FOR EXPEDITED CONSIDERATION" 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/ Kevin B. Crawford

Case 1:00-cv-00697-JFM

Document 197-2

Filed 10/03/2005

Page 1 of 4

APPENDIX

Case 1:00-cv-00697-JFM

Document 197-2

Filed 10/03/2005

Page 2 of 4

Case1:98-cv-00614-JFM Document 304 Filed 09/16/2005 Page 1 of 3

No. 98-614C (Filed September 16, 2005)

SOUTHERN NUCLEAR OPERATING COMPANY, ALABAMA POWER COMPANY, GEORGIA POWER COMPANY, Plaintiffs,
go

THE UNITED STATES, Defendant.

ORDER The Court held an initial pretrial conference at 1:30 p.m. on Thursday, September 2005to discuss procedural issues and any impact of Indiana Michigan, 15, F.3d. ,2005 WL 2173563 (Sept. 9, 2005) on the upcomingtrial, including the time period for whichpartial breachdamage evidencewill be offered in this litigation. 2005 WL2173563 at *5. In response to the Court's Order and questioning in the light of Indiana Michigan, counsel expressed their views as to the applicable time period for which damagescan be addressed in this action. Plaintiffs' counsel offered December 31, 2004 as a cut-off date for presentation of its damageevidence for trial. The governmenthas the issue under study and maytake a more limited view as to the recovery period, but did not object to plaintiffs' proposedDecember 31,2004cut-off date for the presentation of evidence. As the parties have been preparing to litigate damagesaccruing somewhat beyond December 31,2004, they expressed no problem with presentation of evidence as to the damages claimedthrough that date. Their expert reports are compatiblewith

Case 1:00-cv-00697-JFM

Document 197-2

Filed 10/03/2005

Page 3 of 4

Case 1:98-cv-00614-JFM Document 304 Filed 09/16/2005 Page 2 of 3

a December 2004 cut-off. Giventhe pretrial preparation, fairness and judicial 31, ±/ efficiency favor, if not compel,presentation of evidenceconcerningdamage incurred as of that date. Concerning compliance with the Court's audit procedure orders, the government represented that, while reserving the right to dispute causation, objections to plaintiffs' damages froman accountingaspect are contained in the expert report(s). Accordingly, except for those items for which the governmenthas providednotice to plaintiffs, the accountingrealities of amounts incurred and paid are established and ~vill be treated as such at trial. The parties are ~vorking toward resolving the remainingdisputed accounting items and will endeavor, in goodfaith, to resolve them by September 30, 2005. Also, counsel admirably reached agreement upon schedules for exchange of demonstrativesand disclosure of the order of witnesses. Accordingly, it is hereby ORDERED: (1) Demonstrative exhibits shall be provided to the opposingparty forty-eight hoursprior to their use at trial; (2) The order of witnesses shall be provided to the opposing party seven calendar days in advance of that testimony; (3) Deposition designations shall be provided to the opposing palV seven calendar days prior to the commencememthe propoundingparty's case-in-chief. of All counter-designationsshall be providedafter the conclusionof the trial; (4) Trial transcripts from the consolidated trial in Yankee Atomic Power Company United States, No. 98-126C v. shall be treated as depositions for the purpose of designations with notice(s) given as provided above; (5) The scope of the trial proceedings in this matter will comprise damage evidence up to and including December 2004; 31, ±/Asthe Court notedat the pretrial conference, a damage is "incurred" this when item in context,and/orwhatparticularcut-offdate(s) recovery be sanctioned Indiana for may by Michigan awaitfurther exposition determination. and -2-

Case 1:00-cv-00697-JFM

Document 197-2

Filed 10/03/2005

Page 4 of 4

Case 1:98-cv-00614-JFM Document304 Filed 09/16/2005 Page 3 of 3

(6) Evidence reflecting the results of the government's audit of plaintiffs' damagesshall be presented at trial in a mannerthat will show items not contested for accounting purposes as set forth above; (7) Should counsel agree that the final pretrial conference scheduled for October 11, 2005 at 10:00 a.m., at the National Courts Building, 717 MadisonPlace, NW,Washington, DC20005, is not necessary, they shall so inform Judicial Assistant Linda Eddins at (202) 357-6613 and that conference will be cancelled.

s/James F. Merow James F. Merow Senior Judge

-3-