Free Response - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

Document 200

Filed 02/03/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on February 3, 2006) __________________________________________ ) NEBRASKA PUBLIC POWER DISTRICT, ) ) Plaintiff, ) ) v. ) No. 01-116C ) (Judge Allegra) THE UNITED STATES, ) ) Defendant. ) __________________________________________) PLAINTIFF'S RESPONSE TO THE COURT'S OCTOBER 14, 2005 ORDER Plaintiff Nebraska Public Power District ("NPPD"), through the undersigned counsel, respectfully responds to the Court's October 14, 2005 Order directing the parties to brief the issue of whether the writ of mandamus issued by the U.S. Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") in Northern States Power Co. v. Dep't of Energy, 128 F.3d 754, 760 (D.C. Cir. 1997) ("Northern States I") is binding in the instant action. 1 The D.C. Circuit's decisions in Northern States I and Northern States Power Co. v. Dep't of Energy, No. 97-1064 et al., 1998 WL 276581 (D.C. Cir. May 5, 1998) ("Northern States II") enforced by mandamus that Court's earlier decision in Indiana Michigan Power Co. v. Dep't of Energy, 88 F.3d 1272 (D.C. Cir. 1996) ("Indiana Michigan"). For reasons explained below, these decisions were properly within the D.C. Circuit's jurisdiction and are binding on the instant action. Defendant's (the "Government") current assertions to the contrary ­ which represent a complete reversal from its position at the U.S. Court of Appeals for the Federal Circuit (the "Federal Circuit") regarding the precedential value of Northern States I and II ­ are wholly
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NPPD's response was originally due on December 12, 2005, but that due date was revised to January 6, 2006 and February 3, 2006 per the Court's November 15, 2005 and January 13, 2006 orders, respectively.

Case 1:01-cv-00116-FMA

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without merit. 2 Moreover, the Government specifically cited Northern States I as precedent in its attempt to preclude plaintiff utilities from filing breach of contract suits directly in this Court. Although the Federal Circuit rejected the Government's interpretation of Northern States I in Northern States Power Co. v. United States, 224 F.3d 1361, 1366 (Fed. Cir. 2000) ("Northern States III"), the Federal Circuit did not dispute in Northern States III that the D.C. Circuit's Northern States I decision is binding. In short, the fact that the Government relied on the D.C. Circuit's precedent as binding suggests that the Government cannot credibly advance a diametrically opposite position now. Hence, the D.C. Circuit's writ of mandamus in Northern States I continues to bar the Government from relying upon Article IX.A, the "Unavoidable Delays" clause of the Standard Contract For Disposal Of Spent Nuclear Fuel And/Or High Level Radioactive Waste (the "Standard Contract") to excuse its breach of NPPD's contract. The D.C. Circuit properly exercised its authority under Section 119 of the Nuclear Waste Policy Act (the "NWPA"), 42 U.S.C. § 10139, to render its decisions in Northern States I and II. Exhibit B at 4-6. While the Government's PSEG appeal brief contends that the courts of appeals lost their ability to enforce the NWPA vis-à-vis the Standard Contracts 180 days after the 1983 publication of the Standard Contract in the Federal Register, the U.S. Court of Appeals for the Eleventh Circuit rejected this argument in Alabama Power Co. v. Dep't of Energy, 307 F.3d 1300, 1311 (11th Cir. 2002). Exhibit B at 9-10. Utilities such as NPPD were not challenging the terms and conditions of the Standard Contract in Indiana Michigan or in Northern States I and II, but rather DOE's interpretation of its obligations under the NWPA. Id. at 10-11. Indeed,
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The Government's December 27, 2005 response to the Court's October 14, 2005 Order attached the Government's response brief from a pending appeal at the Federal Circuit, PSEG Nuclear LLC v. United States, No. 05-5162 (Fed. Cir.) (the "PSEG appeal"), which brief alleges why the D.C. Circuit "exceeded its jurisdiction in issuing its writ of mandamus in [Northern States I]." For the Court's convenience, NPPD has attached the Plaintiffs-Appellants' initial and reply briefs from the PSEG appeal at Exhibits A and B, respectively. 2

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Section 119 of the NWPA provides the D.C. Circuit (and regional circuits) with original and exclusive jurisdiction over challenges to APA-type agency actions taken by DOE under the NWPA. Exhibit A at 14-17; Exhibit B at 4-5. The D.C. Circuit properly availed itself of such jurisdiction in Indiana Michigan and properly enforced its own mandate in Northern States I and II. Exhibit A at 22-24. CONCLUSION As explained above and in the PSEG appeal, the jurisprudence at the federal appellate courts regarding their jurisdiction and DOE's obligations under the Standard Contract is wellsettled and binding on this Court. The Government may not rely on the Unavoidable Delays clause to abrogate the NWPA's unconditional statutory obligation for DOE to begin performance by January 31, 1998, and to excuse DOE's continuing non-performance of the Standard Contract. The D.C. Circuit's writ of mandamus in Northern States I and II enforcing the NWPA is proper and should not be revisited here.

Dated: February 3, 2006

Respectfully submitted,

Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 (202) 663-8000 (202) 663-8007 (fax)

s/ Alex D. Tomaszczuk by s/ Jack Y. Chu 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 Nebraska Public Power District

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