Free Joint Status Report - District Court of Federal Claims - federal

Case 1:02-cv-01894-EJD

Document 86

Filed 06/06/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSUMERS ENERGY COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) )

COFC No. 02-1894-C (Chief Judge Damich)

JOINT STATUS REPORT PURSUANT TO ORDERS DATED APRIL 27 and 29, 2005 Plaintiff Consumers Energy Company ("Plaintiff" or "Consumers Energy"), and Defendant United States of America ("Defendant" or the "government"), by and through their respective attorneys, submit this Status Report in accordance with the Court's Orders dated April 27 and 29, 2005, and state as follows: On April 27, 2005, the Court entered an Order granting Plaintiff's unopposed motion for extension of time to file dispositive motions concerning the rate and date of acceptance of Consumers Energy's Spent Nuclear Fuel ("SNF") and High Level Radioactive Waste ("HLW") (collectively referred to as "SNF"). The April 27, 2005 Order also directed the parties to file a Joint Status Report on or before June 6, 2005 on the status of settlement discussions and the parties' respective plans for further dispositive motions and trial preparation. On April 29, 2005, the Court issued a published Opinion and Order on Defendant's Motion for Summary Judgment Upon Counts I and II of Plaintiff's Complaint and, in the Alternative, for Partial Summary Judgment Upon Defendant's Right to Recover Unpaid Fees, and on Plaintiff's Motion for Summary Judgment on Contract Liability (the "April 29, 2005 Order"). The April 29, 2005 Order also directed the parties to submit a Status Report on or

Case 1:02-cv-01894-EJD

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before June 6, 2005. A. STATUS OF SETTLEMENT DISCUSSIONS

Following oral argument on the Motions referenced above on February 16, 2005, the parties discussed entering into settlement negotiations in this case. A settlement was reached in another SNF case, Exelon v. United States, which the parties believe may form the conceptual basis for settlement discussions in this case. In order to address the format of the Exelon settlement, Plaintiff was required to consult with its experts and internal staff, and adjust some of its technical assumptions in order to provide the most meaningful opportunity to achieve a settlement. Plaintiff then directed its economic expert to produce a report strictly for purposes of settlement, and conforming as closely as possible to the format of the Exelon settlement, as a basis to begin discussions. Because the format of the Exelon settlement itself was a compromise, and included lump sum and yearly reconciliation components, the task of fitting Consumers Energy's claims into the Exelon format was complicated and time consuming. Consumers Energy's experts completed their initial assessment under the Exelon format in May. Consumers Energy expects to be in a position to submit a position paper in support of settlement within three weeks. We anticipate that the parties will arrange a meeting shortly afterward to discuss the underlying economic assumptions and documentation for the offer. The parties respectfully request that further motions, discovery and trial preparation be suspended until efforts at settlement are successful, or are exhausted. The parties further request that they be allowed to file a Joint Status Report in 60 days reporting the status of settlement negotiations. B. PLAINTIFF REQUESTS SUSPENSION OF THE DATE TO FILE DISPOSITIVE MOTIONS ON ACCEPTANCE DATE AND 2

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ACCEPTANCE RATE Plaintiff Consumers Energy intends to file partially dispositive motions on the acceptance rate and acceptance date for acceptance and delivery of its SNF. These may be described as follows: 1. Motion regarding acceptance rate. This motion has also been brought in several other SNF cases and will seek to establish the rate at which SNF was to be accepted by the government under the Standard Contract. 2. Motion regarding acceptance date. This motion will seek to establish the date on which DOE will begin accepting SNF at a permanent or interim storage facility. Under the Court's April 27, 2005 Order, these motions were to be filed on or before June 20, 2005. In order to avoid distraction from the parties' attempts to settle this case, Consumers Energy respectfully requests that the date to file these motions be suspended until further Order of the Court. CONCLUSION AND RELIEF REQUESTED The parties respectfully request that further activity in this case be temporarily suspended while the parties engage in settlement discussions. The parties further request that they be allowed to file a Joint Status Report in 60 days reporting the status of settlement negotiations, and that the date for filing Consumers Energy's motions on acceptance rate and acceptance date be suspended until further Order of the Court.. Respectfully submitted,

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Case 1:02-cv-01894-EJD

Document 86

Filed 06/06/2005

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Peter D. Keisler Assistant Attorney General David M. Cohen Director s/ Harold D. Lester, Jr. Harold D. Lester, Jr. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Tele: (202) 305-7562 Fax: (202) 307-2503 OF COUNSEL: Jane K. Taylor Office of General Counsel Department of Energy 1000 Independence Avenue, S.W. Washington, D.C. 20585 Attorneys for Defendant Dated: June 6, 2005

s/ Thomas O Mason Thomas O. Mason Williams, Mullen, Clark & Dobbins 8270 Greensboro Drive, Suite 700 McLean, VA 22102 (703) 760-5200 Harvey J. Messing (P23309) Jeffrey S. Theuer (P44161) LOOMIS, EWERT, PARSLEY, DAVIS & GOTTING, P.C. 232 S. Capitol Avenue, Suite 1000 Lansing, MI 48933 (517) 482-2400 Attorneys for Plaintiff OF COUNSEL: James E. Brunner (P28051) Arunas T. Udrys (P21660) Consumers Energy Company 212 West Michigan Avenue Jackson, MI 49201 (517) 788-2151 Attorneys for Plaintiff

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