ENTERGY GULF STATES, INC. v. USA

Filing 288

REPORTED OPINION. The Clerk is directed to enter partial judgment. Supplemental briefing due by 9/30/2016. Signed by Judge Mary Ellen Coster Williams. (TF3) Copy to parties.

In the United States Court of Federal Claims
No. 03-2625C
(Filed: September 21, 2016)

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ENTERGY GULF STATES, INC., and
ENTERGY GULF STATES
LOUISIANA, L.L.C.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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Spent Nuclear Fuel; Partial
Breach of Contract; Damages;
Causation; Cask Loading Costs.

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Alexander D. Tomaszczuk, Pillsbury Winthrop Shaw Pittman LLP, 1650 Tysons
Boulevard, McLean, VA 22102, for Plaintiffs. Jay E. Silberg, and Clare Cavaliero Pincoski,
Pillsbury Winthrop Shaw Pittman LLP, 1200 17th Street NW, Washington, D.C. 20036, Of
Counsel. L. Jager Smith, Jr., Jager Smith LLC, 1340 Echelon Parkway, Jackson, MS 39213, Of
Counsel.
Benjamin C. Mizer, Robert E. Kirschman, Jr., Allison Kidd-Miller, and Eric P. Bruskin,
U.S. Department of Justice, Civil Division, Commercial Litigation Branch, P.O. Box 480, Ben
Franklin Station, Washington, D.C. 20044, for Defendant. Christopher J. Carney, Christopher K.
Wimbush, and Anand R. Sambhwani, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, P.O. Box 480, Ben Franklin Station, Washington, D.C. 20044, Of Counsel.
Jane K. Taylor, U.S. Department of Energy, Office of General Counsel, 100 Independence
Avenue, SW, Washington, DC 20585, Of Counsel.

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OPINION AND ORDER ENTERING PARTIAL JUDGMENT
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WILLIAMS, Judge.
This opinion is a continuation of the Court’s prior decision in Entergy Gulf States, Inc. v.
United States, 125 Fed. Cl. 678 (2016), which deferred one claim pending the decision of the
United States Court of Appeals for the Federal Circuit in System Fuels, Inc. v. United States, 818
F.3d 1302 (Fed. Cir. 2016). Following a 12-day trial beginning in 2015, this Court awarded
Plaintiffs a partial judgment of $42,341,604 in damages for site modifications, payroll and
materials loaders, and additional security. Entergy Gulf States, 125 Fed. Cl. at 718. The Court
stayed consideration of Plaintiffs’ claim for cask loading costs, including fuel characterization, as
the cask loading cost issue was under consideration by the Federal Circuit in System Fuels. Id.
at 703.
The Federal Circuit issued its opinion in System Fuels on April 4, 2016, finding that
because storage casks may not be used for transportation, “System Fuels was entitled under the
law to all of the costs of loading these storage casks.” Sys. Fuels, 818 F.3d at 1306-07. The
court stated that the expenses incurred for loading the storage casks “are expenses incurred
entirely for storage due to the government’s breach,” and that because the storage casks cannot
be used for transportation, “System Fuels will be required, if and when the government begins to
comply, . . . to unload the spent nuclear fuel from these storage casks and reload it into suitable
transportation casks provided by the government.” Id. at 1307.
Following the issuance of the Federal Circuit’s decision, this Court permitted
supplemental briefing on Plaintiffs’ claims for cask loading and fuel characterization costs.
Order (May 20, 2016). The parties filed their supplemental briefs on June 22, 2016.
In light of the Federal Circuit’s ruling in System Fuels, Defendant no longer contests the
$5,143,279 in damages Plaintiffs claim for the preparation, packaging, and loading of spent
nuclear fuel. See Sys. Fuels, 818 F.3d at 1306-07. The Court awards Plaintiffs $5,143,279 for
this activity. The Court also awards Plaintiffs $7,930 in allegedly unsupported costs and $46,555
in payroll loader costs associated with the preparation, packaging, and loading of spent nuclear
fuel. See Entergy Gulf States, 125 Fed. Cl. at 706-08.
Pursuant to Rule 54(b), there being no just reason for delay, the Clerk is directed to enter
partial judgment for Plaintiffs in the amount of $5,197,764. This case shall remain open pending
resolution of Plaintiffs’ claim for fuel characterization costs. Briefing on that claim will close on
September 30, 2016.

s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge

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