5070 Boston Edison Company v. United States

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-5066, -5070
BOSTON EDISON COMPANY,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - - -
ENTERGY NUCLEAR GENERATION COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeals from the United States Court of Federal Claims in 99-CV-447, 03-CV-2626,
Judge Charles F. Lettow.
ON MOTION
Before MAYER, LOURIE, and DYK, Circuit Judges.
MAYER, Circuit Judge.
O R D E R
The parties respond to this court's order concerning whether this court has
jurisdiction over these appeals. Entergy Nuclear Generation Company moves for leave
to file a supplemental response. Boston Edison Company replies.

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Boston Edison sued the United States for damages related to its contract with the
Department of Energy (DOE) and DOE's failure to begin acceptance of spent nuclear
fuel. Boston Edison sold its interests in the nuclear power station to Entergy. Boston
Edison sought damages, inter alia, for breach of contract and for the diminished value
that it asserted it obtained when it sold the nuclear power station to Entergy. Entergy
filed its own suit for damages arising out of DOE's failure to begin acceptance of spent
nuclear fuel. The United States Court of Federal Claims consolidated the Boston
Edison case and Entergy Nuclear case for purposes of addressing certain shared
issues and issued one decision concerning the issues for both cases.
The Court of Federal Claims rejected the arguments of the United States and
Entergy and decided that spent nuclear fuel storage costs and costs associated with
returning the site to a green-field condition were included in a decommissioning fund
transferred to Entergy by Boston Edison. The Court of Federal Claims also rejected
objections raised by the United States and Entergy concerning the conclusions of
Boston Edison's experts. The United States notes that Entergy had argued that it did
not reduce its purchase price because of DOE's delay in acceptance of spent nuclear
fuel and that it did not receive compensation from Boston Edison to account for the
delay. The trial court disagreed, and the United States asserts that that determination is
one of the issues that would be raised by it in this appeal.
The Court of Federal Claims rejected the United States' argument that it should
decide that any judgment entered in favor of Entergy should be offset by any judgment
entered in favor of Boston Edison, stating that such issues might be considered in the
case involving Entergy. The Court of Federal Claims awarded more than 40 million
dollars to Boston Edison.
2008-5066, -5070 2

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Because the cases were consolidated below, even if only for limited purposes,
absent entry of a proper Fed. R. Civ. P. 54(b) judgment we would not have jurisdiction
in any appeal in this matter until entry of a final judgment deciding the entire
consolidated matter. See Spraytex, Inc. v. DJS&T, 96 F.3d 1377, 1382 (Fed. Cir.
1996). In Spraytex, we recognized that a trial court may, when appropriate, enter a
Rule 54(b) judgment if it chooses to enter a judgment in a portion of a consolidated
matter. Id.
The Court of Federal Claims granted a motion to enter a Rule 54(b) judgment
insofar as its rulings affect Boston Edison's case and denied a motion to enter a Rule
54(b) judgment related to its rulings that may affect the case involving Entergy. Both
the United States and Entergy filed notices of appeal. We requested that the parties
respond whether the Rule 54(b) judgment was improperly entered.
We determine that, because the claims of Boston Edison and Entergy are very
intertwined, the 54(b) judgment should not have been entered. Because the Court of
Federal Claims declined to enter a 54(b) judgment involving Entergy, Entergy cannot
appeal, and it acknowledges that its appeal must be dismissed. However, some of the
Court of Federal Claims' determinations in the 54(b) judgment on review will have a
direct effect on the issues in the case involving Entergy. Thus, either this court would
be called upon to decide the same issues more than once if there were subsequent
appeals or this court's decision in this appeal would determine those issues for both
cases even though Entergy cannot now seek review of the holdings. Under these
circumstances, it was improper to enter the 54(b) judgment. See Curtiss-Wright Corp.
v. General Elec. Co., 446 U.S. 1, 8-10 (1980) (trial court may decide "whether the
nature of the claims already determined was such that no appellate court would have to
2008-5066, -5070 3

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decide the same issues more than once if there were subsequent appeals"; court of
appeals must "scrutinize the district court's evaluation of such factors as the
interrelationship of the claims so as to prevent piecemeal appeals in cases which should
be reviewed only as single units"); W.L. Gore & Assocs., Inc. v. International Med.
Prosthetics Res. Assocs., Inc., 975 F.2d 858, 862 (Fed. Cir. 1992) ("[t]he separateness
of the claims for relief, on the other hand, is a matter to be taken into account in
reviewing the trial court's exercise of discretion in determining that there is no just
reason to delay the appeal.").
Because the Rule 54(b) judgment was not proper, we remand with instructions to
vacate the judgment. We make no determination concerning the merits of the trial
court's rulings.
Accordingly,
IT IS ORDERED THAT:
(1) Entergy's appeal is dismissed.
(2) The case involving Boston Edison is remanded to the Court of Federal
Claims with instructions to vacate the Rule 54(b) judgment.
(3) Entergy's motion for leave to file a supplemental response is granted.
(4) All other pending motions are moot.
(5) All sides shall bear their own costs.
FOR THE COURT
Oct. 7, 2008 /s/ Haldane Robert Mayer
Date Haldane Robert Mayer
Circuit Judge
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2008-5066, -5070 5
cc: Richard J. Conway, Esq.
Alan J. Lo Re, Esq.
Michael B. Wallace, Esq.
s8

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