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Case 1:98-cv-00483-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FLORIDA POWER AND LIGHT COMPANY, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) No. 98-483C ) (Judge Baskir) ) ) )

JOINT RESPONSE TO THE COURT'S JULY 13, 2005 ORDER Plaintiff, Florida Power & Light Company ("FPL"), and defendant, the United States, respectfully respond to the Court's order dated July 13, 2005. In that order, the Court ordered the parties to address the following matters: (1) "[s]ummarizing proceedings to date, including pending motions;" (2) "[p]roposing a schedule for further proceedings;" and (3) "[a]ddressing whether or not it is appropriate to stay the case." Summary Of Proceedings To Date In response to the Court's request that the parties "[s]ummariz[e] proceedings to date, including pending motions," the parties offer the following: This case was originally filed on June 8, 1998. Proceedings in the case were initially stayed pending a decision from the United States Court of Appeals for the Federal Circuit in Northern States Power Co. v. United States, No. 99-5096 (Fed. Cir.), regarding whether plaintiffs in the spent nuclear fuel ("SNF") cases were

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required to exhaust their administrative remedies under the Standard Contract before proceeding in this Court. On January 8, 2001, after the Federal Circuit found that exhaustion was unnecessary, the Government filed a motion with the Chief Judge seeking to consolidate all of the pending SNF cases for the purpose of resolving issues surrounding the rate of SNF acceptance required by the Standard Contract. Initially, the Court, through Judge Wiese as the Chief Judge's designee, declined to grant the Government's motion and ordered a coordinated discovery proceeding for discovery into rate and schedule issues, and Judge Sypolt was assigned as the presiding judge over those discovery proceedings. Subsequently, the Government filed three dispositive motions in the various SNF cases, including this case: (1) a motion for partial summary judgment regarding the rate of SNF acceptance; (2) a motion for partial summary judgment regarding whether the Standard Contract required the Department of Energy to accept Greater-Than-Class-C ("GTCC") waste pursuant to the Standard Contract; and (3) a motion to dismiss the plaintiff's takings claim.1 FPL responded to these motions and filed a cross-motion for summary judgment on the rate of SNF acceptance issue. FPL also filed a motion
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In those SNF cases in which a plaintiff alleged an illegal exaction, the Government also filed a motion to dismiss the illegal exaction claim. The plaintiff in this case has not alleged an illegal exaction. -2-

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seeking entry of a liability order, which the Court granted by order dated January 11, 2002. Subsequently, in response to the Government's motion to the Chief Judge to renew consideration of the motion to consolidate the various SNF cases, the Chief Judge issued an order on April 16, 2003, denying the Government's motion, but identifying six SNF cases, including this one, as "lead" cases. On October 14, 2004, the judge then assigned to this case, Judge Sypolt, issued an order, requesting that the parties show cause as to why this case should not be transferred to the United States Court of Appeals for the District of Columbia pursuant to the judicial review provision of the Nuclear Waste Policy Act, 42 U.S.C. § 10139. On January 31, 2005, after the parties had responded to the show cause order, Judge Sypolt issued a decision finding that this Court lacked jurisdiction to entertain FPL's claims and ordering FPL's claims transferred to the D.C. Circuit. Following Judge Sypolt's retirement, this case was transferred to the current presiding judge, and FPL requested that the Court reconsider Judge Sypolt's decision regarding jurisdiction. By order dated June 17, 2005, the Court vacated Judge Sypolt's January 31, 2005 jurisdictional order. The Government's motions for partial summary judgment and to dismiss, as well as FPL's cross-motion for summary judgment regarding the rate of SNF acceptance, remain pending. -3-

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The Parties' Position Regarding Further Proceedings As the Court may be aware, counsel for the parties in this case recently presented oral argument before the United States Court of Appeals for the Federal Circuit in Indiana Michigan Power Co. v. United States, No. 04-5122 (Fed. Cir.), another SNF case involving some of the same issues that they anticipate may arise in this case. The parties have agreed to request, jointly, that the Court suspend further proceedings in this case until 30 days after the Federal Circuit has issued a decision in Indiana Michigan, at which time the parties will submit a joint status report proposing further proceedings in this case. Accordingly, the parties jointly request a temporary suspension of further proceedings in this case.2

To the extent that the Court does not suspend proceedings in this case pending the resolution of the Indiana Michigan appeal, the parties believe it appropriate to supplement their prior briefing on the pending partially dispositive motions and for the Court to decide those motions. -4-

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 July 27, 2005 Attorneys for Defendant

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s/ Alex D. Tomaszczuk Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Florida Power & Light Co. Of Counsel: Jay E. Silburg Daniel S. Herzfeld Jack Y, Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 (202) 663-8000 (202) 663-8007 (fax) June 27, 2005

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CERTIFICATE OF FILING I hereby certify that on this 27th day of July 2005, a copy of foregoing "JOINT RESPONSE TO THE COURT'S JULY 13, 2005 ORDER" 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/ Harold D. Lester, Jr.