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

Case 1:99-cv-00447-CFL

Document 218

Filed 02/10/2005

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

No. 99-447C (J. Lettow)

PLAINTIFF BOSTON EDISON COMPANY'S NOTICE OF ADDITIONAL AUTHORITY Plaintiff Boston Edison Company ("Boston Edison"), through its undersigned counsel, wishes to bring to the Court's attention Judge Braden's recent decision in Sacramento Municipal Utility District v. United States, 98-488C (January 19, 2005)("SMUD"). Judge Braden's decision is of key importance to the Court's consideration of Boston Edison's Cross-Motion for Summary Judgment on Liability currently before the Court because it conclusively holds that, as a matter of law, the Government breached the DOE Standard Contract on January 31, 1998, the date upon which the Government was obligated to begin collecting spent nuclear fuel ("SNF") from nuclear utilities. Indeed, Judge Braden provided the very relief sought by BECO in the Cross-Motion presently pending before the Court ­ namely, an order finding the Government liable for breach of the Standard Contract on January 31, 1998. In SMUD, the Court held that the Federal Circuit conclusively settled the issue of the date of breach of the Standard Contract in Maine Yankee Atomic Co. v. United States, 225 F.3d 1336 (Fed. Cir. 2000) and Northern States Power Co. v. United States, 224

Case 1:99-cv-00447-CFL

Document 218

Filed 02/10/2005

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F.3d 1361 (Fed. Cir. 2000). In Maine Yankee and Northern States, the Federal Circuit held that the Government breached the Standard Contract on January 31, 1998. SMUD at 10. The Court's SMUD decision also rejected the Government's argument that the Delivery Commitment Schedules ("DCS") determined the date of the breach, holding instead that the DCSs were for planning purposes only. Id. at 13. Finally, Judge Braden soundly rejected the Government's argument that the breach should be determined by the "oldest fuel first principles." Id. p. 16. A copy of Judge Braden's opinion is attached hereto for the Court's convenience. The SMUD ruling affirms the allegations made in Boston Edison's Complaint (pages 11-17), as well as the arguments proffered in Boston Edison's Cross-Motion for Summary Judgment (pages 46-49), regarding the Government's breach of the Standard Contract on January 31, 1998. Date: February 10, 2005 Respectfully submitted,

/s/ Richard J. Conway_________________ Richard J. Conway DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 2101 L Street, NW Washington, DC 20037 (202) 785-9700 Counsel of Record for Boston Edison Company Of Counsel: David M. Nadler Nicholas W. Mattia, Jr. Bradley D. Wine Jeffrey P. Becherer DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 2101 L Street, NW Washington, DC 20037 (202) 785-9700

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Case 1:99-cv-00447-CFL

Document 218

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Neven Rabadjija, Esq. Associate General Counsel NSTAR Electric & Gas Corporation 800 Boylston Street 17th Floor Boston, MA 02199-0228

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Case 1:99-cv-00447-CFL

Document 218

Filed 02/10/2005

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CERTIFICATE OF ELECTRONIC FILING I hereby certify that on February 10, 2005 a copy of the foregoing Plaintiff Boston Edison Company's Notice of Additional Authority was filed electronically. I understand that the 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/ Richard J. Conway Richard J. Conway DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 2101 L Street, NW Washington, DC 20037 (202) 785-9700 Counsel of Record for Boston Edison Company

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