BOSTON EDISON COMPANY et al

Filing 59

UNREPORTED ORDER denying 56 Motion to Certify Interlocutory Appeal. Signed by Senior Judge Charles F. Lettow. (ac)

In the United States Court of Federal Claims
No. 20-529C

(Filed: December 17, 2021)
(Not to be Published)
BOSTON EDISON COMPANY, et al.,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
HOLTEC PILGRIM, LLC,
Defendant-Intervenor.

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Richard J. Conway, Blank Rome LLP, Washington, D.C., for plaintiff. With him on the
briefs were Frederick M. Lowther and Adam Proujansky, Blank Rome LLP, Washington, D.C.,
and Neven Rabadjija, Deputy General Counsel, Eversource Energy, Boston, Massachusetts.
Daniel Falknor, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for the United States. With him on briefs were
Brian M. Boyton, Acting Assistant Attorney General, Martin F. Hockey, Jr., Acting Director,
and Lisa L. Donahue, Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., as well as Brighton Springer, Office of the
General Counsel, United States Department of Energy, Washington, D.C.
Adam K. Israel, Balch & Bingham LLP, Birmingham, Alabama, for defendantintervenor. With him on the briefs was Alan D. Lovett, Balch & Bingham LLP, Birmingham,
Alabama.
ORDER
LETTOW, Senior Judge.
Intervenor, Holtec Pilgrim, LLC (“Holtec”), has moved for certification of an
interlocutory appeal stemming from the court’s opinion and order denying Holtec’s prior motion

for summary judgment. See Int.’s Mot. to Certify Interlocutory Appeal (“Int.’s Mot.”), ECF No.
56. In that summary judgment motion, intervenor raised four questions, three of which the court
had already adjudicated in earlier opinions and one of which was premature. See Boston Edison
Co. v. United States, ___ Fed. Cl. ___, No. 20-529C, 2021 WL 5298268 (Nov. 15, 2021). Holtec
now seeks to certify those four questions for interlocutory appeal. See Int.’s Mot. The motion is
fully briefed. See Pl.’s Opp’n to Int.’s Mot. (“Pl.’s Opp’n”), ECF No. 58; Def.’s Resp. to Int.’s
Mot., ECF No. 57. Intervenor’s motion is DENIED.
To grant certification, 28 U.S.C. § 1292(d)(2) “requires the court to determine that (1) a
controlling question of law is at issue, (2) a substantial ground for differences of opinion exists
regarding that question, and (3) certification may advance the ultimate termination of the
litigation.” Wolfchild v. United States, 78 Fed. Cl. 472, 481 (2007). Intervenor’s first three
questions fail the first requirement, i.e., questions whether Boston Edison Co. (“Boston Edison”)
“possessed and retained an ‘accrued’ claim” after selling the nuclear power plant in 1999, Int.’s
Mot. at 2, whether Boston Edison’s claim is time barred, id., and whether Boston Edison “is
entitled to claim” damages measured by Hotlec’s decommissioning expenditures, id., 1 are not
“pure” or “abstract issue[s] of law,” see Arenholz v. Bd. Of Trs. of Univ. of Ill., 219 F.3d 674,
676-77 (7th Cir. 2000) (applying the functionally equivalent 28 U.S.C. § 1292(b)). Rather, these
questions involve application of law to fact that an appellate court could not “decide quickly and
cleanly without having to study the record.” Id. at 677. Furthermore, there is no substantial
ground for differences of opinion as to the first three proposed questions. In each instance,
Holtec’s questions are resolved by binding precedent, and the court has reaffirmed this
circumstance several times. See Boston Edison, ___ Fed. Cl. at ___, 2021 WL 5298268 at *4-7.
Finally, intervenor’s fourth question is a purely factual issue, and one which the court has not yet
had occasion to adjudicate, i.e., whether any damages to which Boston Edison may be entitled
should be limited to $40.03 million. See Wolfchild, 78 Fed. Cl. at 482 (“The agency question
suggested by the government consequently cannot be certified for interlocutory appeal because it
neither has been decided by this court nor is a question of law, let alone a controlling question.”).
For these reasons, Holtec’s motion is DENIED. The parties shall continue to fulfill their
discovery obligations in accordance with the existing schedule.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge

1

Holtec’s third proposed question for interlocutory appeal is vague and may either be
interpreted as repeating the first question, whether Boston Edison retained a claim at all, or as
repeating its summary judgment argument that Boston Edison’s claims are not ripe until after
decommissioning. Intervenor’s motion does not explicitly analyze each question against 28
U.S.C. § 1292(d)(2)’s requirements, preventing the court from identifying exactly what Holtec
meant to convey in the third proposed question. The court’s analysis would nevertheless be
identical under either reading of the question.
2