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

Case 1:98-cv-00483-LMB

Document 258

Filed 12/16/2005

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on December 16, 2005) __________________________________________ ) FLORIDA POWER AND LIGHT COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) JOINT STATUS REPORT Pursuant to the Court's October 7, 2005 Order, Plaintiff Florida Power and Light Company ("FPL") and Defendant, the United States, respectfully and jointly submit this status report regarding a suggested schedule for further proceedings in this case. The Court's October 7, 2005 Order: (1) stayed this case; and (2) required the parties "to file a joint status report with a suggested schedule for further proceedings with no later than December 7, 2005." The parties subsequently sought leave for a nine-day extension of time through December 16, 2005 to file this joint status report, which extension the Court granted in an Order dated December 8, 2005. The Court had stayed this case, in part, to allow time for the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") to consider any request for rehearing in Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005) ("Indiana Michigan"). Indeed, the plaintiff in Indiana Michigan filed a petition for rehearing on October 24, 2005 seeking clarification from the Federal Circuit on whether its holding that a utility cannot recover "future" damages in a pending partial breach of contract action, see id. at 1376, applies to costs that a plaintiff incurs between the date of its complaint and the time of its damages trial. On November 25, 2005, the Federal Circuit denied Indiana Michigan's petition for rehearing without further comment.

No. 98-483C (Judge Baskir)

Case 1:98-cv-00483-LMB

Document 258

Filed 12/16/2005

Page 2 of 3

Absent agreement of the parties or further guidance from the Federal Circuit, this Court will need to determine the procedural mechanism for the recovery of post-complaint/pre-trial damages in a partial breach action. Counsel for the parties have recently discussed their positions on this issue, and agreed that FPL will file before the end of this calendar year an amended or supplemental complaint to plead its damages through November 2005 that are attributable to Defendant's breach of contract (coupled with a motion for leave to file). Upon filing of this motion and amended or supplemental complaint, Defendant will determine whether or not to oppose FPL's motion for leave. To the extent that Defendant opposes FPL's motion, the parties respectfully request briefing and argument before the Court on the recoverability of post-complaint/pre-trial damages in light of the Federal Circuit's Indiana Michigan decision. Once the Court has ruled on this issue, the parties intend to submit another status report outlining their proposal for further proceedings in this case.

Dated: December 16, 2005 OF COUNSEL: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax)

Respectfully submitted, s/ Alex D. Tomaszczuk by s/ Jack Y. Chu Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, VA 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Florida Power and Light Company

2

Case 1:98-cv-00483-LMB

Document 258

Filed 12/16/2005

Page 3 of 3

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. by s/ Jack Y. Chu HAROLD D. LESTER, JR. Assistant Director s/ Marian E. Sullivan by s/ Jack Y. Chu MARIAN E. SULLIVAN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 616-0478 Fax: (202) 307-2503 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR MARTHA S. CROSLAND Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

3