Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:98-cv-00614-JFM

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Filed 10/01/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SOUTHERN NUCLEAR OPERATING, COMPANY; ALABAMA POWER COMPANY; and GEORGIA POWER COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) No. 98-614C ) (Senior Judge Merow) ) ) ) )

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT REGARDING PRE-BREACH AND FUTURE DAMAGES Pursuant to Rule 56(h)(1) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully files these proposed findings of uncontroverted fact in support of its motion for summary judgment regarding the unavailability of pre-breach and future damages for plaintiffs, Southern Nuclear Operating Company, Alabama Power Company and Georgia Power Company, in the claim for partial breach pending before the Court. PROPOSED FINDINGS OF UNCONTROVERTED FACT 1. Alabama Power and Georgia Power executed Standard Contracts with the

Department of Energy ("DOE") for the removal of spent nuclear fuel from their respective facilities. First Amended Complaint, dated October 4, 2002, ¶¶ 2, 14. 2. Alabama Power and Georgia Power continue to perform their obligations, namely

the payment of fees, pursuant to the Standard Contract. First Amended Complaint, ¶¶ 3, 17. 3. The Department of Energy ("DOE") was obligated to begin to accept spent

nuclear fuel ("SNF") from commercial nuclear utilities by January 31, 1998, in accordance with the requirements of the Standard Contract, 10 C.F. R. § 961.11 (1983). DOE has not yet begun

Case 1:98-cv-00614-JFM

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to accept SNF from any commercial nuclear utilities pursuant to the Standard Contract. Order, filed Apr. 7, 2004, at 5. 4. Plaintiffs seek to recover for the Department of Energy's ("DOE") partial breach

of the Standard Contract. First Amended Complaint, Count I. 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 JOHN C. EKMAN HEIDE L. HERRMANN Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

s/ Marian E. Sullivan MARIAN E. SULLIVAN 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) 307-0365 Fax: (202) 307-2503 Attorneys for Defendant

October 1, 2004

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CERTIFICATE OF FILING I hereby certify that on this 1st day of October 2004, a copy of foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT REGARDING PRE-BREACH AND FUTURE DAMAGES" 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/Marian E. Sullivan