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

Case 1:98-cv-00154-JFM

Document 368

Filed 08/24/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS Filed Electronically on August 24, 2006 ) ) ) ) ) ) ) ) ) ) ) ) )

CONNECTICUT YANKEE ATOMIC POWER COMPANY, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 98-154C (Senior Judge Merow)

CONNECTICUT YANKEE'S RESPONSE TO THE GOVERNMENT'S MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY1 Although Connecticut Yankee does not object to the government's motion, Connecticut Yankee does have two substantive observations regarding the offset issue raised by the government's motion: first, the authority the government cites is not particularly new or illuminating; and second, the more recent and more instructive precedents squarely hold that in a partial breach case like this, it is not appropriate for the Court to offset costs (like the one-time fee) that are merely deferred and not avoided. Tennessee Valley Authority v. United States, 69 Fed. Cl. 515, 542 (2006); Sacramento Municipal Utility Dist. v. United States, 70 Fed. Cl. 332, 372-73 (2006); see also Response of Connecticut Yankee to Defendant's Motion for Leave to File Amended Answer and Counterclaim filed Oct. 15, 2004 at 1, 8-9 (noting that failure to offset onetime fee would not leave Connecticut Yankee better situated than if DOE had not

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This response should also be deemed applicable to Maine Yankee Atomic Power Co. v. United States, No. 98-474C.

Case 1:98-cv-00154-JFM

Document 368

Filed 08/24/2006

Page 2 of 2

breached, because the spent fuel remains on site as a contingent liability; the fee will be paid when that liability is removed, just as the contract specifies). Dated: August 24, 2006 Respectfully submitted, s/ Jerry Stouck JERRY STOUCK Greenberg Traurig, LLP 800 Connecticut Avenue, NW Suite 500 Washington, DC 20006 (202) 331-3173 phone (202) 261-4751 fax Counsel for Plaintiff CONNECTICUT YANKEE ATOMIC POWER COMPANY Of Counsel: Robert L. Shapiro GREENBERG TRAURIG, LLP

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