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

Case 1:98-cv-00485-JPW

Document 202

Filed 02/10/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on February 10, 2005) ) ) ) ) ) ) ) ) ) ) ) )

DUKE POWER, A Division of DUKE ENERGY CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant.

No. 98-485C (Senior Judge Wiese)

PLAINTIFF'S MOTION FOR RECONSIDERATION Plaintiff Duke Power ("Duke"), a division of Duke Energy Corporation, by and through its undersigned counsel, respectfully moves this Court pursuant to RCFC 59 to reconsider and vacate the Opinion and Order entered in this action on January 31, 2005 (Sypolt, J.), in which the Court concluded that it lacked subject matter jurisdiction over this breach-of-contract action and transferred the case to the U.S. Court of Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631. The grounds for this motion, as more fully set forth in the accompanying memorandum, are that the Court committed a clear error of law in concluding, contrary to the decisions of the Federal Circuit and every other court that has ruled on this issue, that the Tucker Act does not provide this Court with subject matter jurisdiction over Duke's damage claim against the United States for breach of contract. Reconsideration is appropriate to prevent the manifest injustice of transferring this case to a court that has already ruled that it is the improper forum for adjudicating this claim.

Case 1:98-cv-00485-JPW

Document 202

Filed 02/10/2005

Page 2 of 2

WHEREFORE, Duke respectfully requests that the Court grant this motion, vacate the Opinion and Order of January 31, 2005, and proceed to the merits of this case.

Dated: February 10, 2005

Respectfully submitted, s/ Alex D. Tomaszczuk by s/ Jack Y. Chu Alex D. Tomaszczuk SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Duke Power, A Division of Duke Energy Corporation

Of Counsel: Jay E. Silberg David J. Cynamon Walter F. Zenner Michael G. Lepre Daniel S. Herzfeld Jack Y. Chu SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax)

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