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

Case 1:98-cv-00483-LMB

Document 253

Filed 09/30/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on September 30, 2005) __________________________________________ ) FLORIDA POWER AND LIGHT COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

No. 98-483C (Judge Baskir)

JOINT STATUS REPORT AND MOTION TO CONTINUE STAY Pursuant to the Court's August 1, 2005 Order, Plaintiff Florida Power and Light Company ("FPL") and Defendant, the United States, respectfully and jointly submit this status report to request that this case remain stayed. The Court's August 1, 2005 Order: (1) stayed this case; (2) required the parties "to file a joint status report every 60 days informing the Court of any new developments" in the appeal of this Court's decision in Indiana Michigan Power Co. v. United States, No. 98-486C; and (3) instructed the parties "to file a joint status report with a suggested schedule for further proceedings" within 30 days after the United States Court of Appeals for the Federal Circuit issues its opinion in Indiana Michigan. As the Court may be aware, the Federal Circuit issued its opinion in Indiana Michigan on September 9, 2005. For reasons explained below, however, Plaintiff has proposed and the Government has agreed that the stay in this case should be extended through November 30, 2005. The parties also request that their filing of a suggested schedule for further proceedings be deferred until the stay in this case is lifted. An extension of the stay in this case is necessary because the time period within which either party may seek reconsideration and/or rehearing of the Federal Circuit's decision in Indiana Michigan does not expire until October 24, 2005. The Federal Circuit's mandate will not issue until

Case 1:98-cv-00483-LMB

Document 253

Filed 09/30/2005

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after that deadline passes. The uncertainty surrounding the parties' response, if any, to the Federal Circuit's decision also warrants a further extension of the stay of this case at this time. A stay in this case until November 30, 2005 will permit the parties sufficient time to decide upon a proposed course of action in this litigation. Just as importantly, the ultimate disposition of the Indiana Michigan appeal ­ especially if the Federal Circuit's decision is reconsidered ­ may affect the scope of damages that FPL may recover in the instant case as a matter of law. Specifically, in its recent decision, the Federal Circuit held that in a suit for partial breach of contract the plaintiff may recover pre-breach damages, while any "future damages" must be sought in separate actions as they are incurred. Indiana Michigan Power Co. v. United States, 2005 U.S. App. LEXIS 19641, at *11-*19 (Fed. Cir. Sep. 9, 2005). Based on various conference calls with judges of this Court and counsel for the Government, this holding appears to have created some uncertainty as to how plaintiffs in the spent fuel cases are to recover costs incurred between the time of complaint and the time of trial. The Government interprets the Federal Circuit's decision to mean that all post-complaint damages ­ including those incurred before trial ­ may be recovered only in a future suit, not in the instant action. FPL and other utility plaintiffs disagree with this interpretation. FPL filed its original complaint in this case in June 1998,1 and believes that when its case proceeds to trial it is entitled to recover in that trial costs incurred after 1998 up to a reasonable cut-off date prior to trial (subject to the general legal rules governing proof of damages). As a practical matter, the Government's interpretation of the Indiana Michigan decision, if adopted, may result in the filing of multiple, periodic damages suits by plaintiff utilities. The parties believe it is prudent to await the Federal Circuit's potential clarification of this important

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FPL amended its complaint in October 2000. 2

Case 1:98-cv-00483-LMB

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issue (such as through a petition for rehearing) before determining how to proceed in this case ­ especially with regard to damages incurred by FPL since June 1998. For the foregoing reasons, therefore, the parties respectfully request that the Court suspend this case through November 30, 2005. Dated: September 30, 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

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

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

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

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