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Federal Court of Claims

The revolving door of Mr. Brad Fagg (really his name) working for the US DOJ and then going to work for Nuclear Utilities to get taxpayer money to pay for the fact that the US government has failed to take the Nuclear Utilities’ Nuclear waste off their hands, as stupidly promised, is bad enough.

However, it is beyond outrageous that Brad Fagg is “lead counsel for most US nuclear utilities” suing the US government AND serves on the Advisory Committee of the US Court of Federal Claims.

He appears to have both ends sewn up as the DOJ does settlements. The $2 billion Fagg has apparently “won” is about half of what the US taxpayer has paid out – about $4.5 billion. (Read more details at post bottom).
Holtec Diablo casks Dec. 2006
Holtec Spent Nuclear Fuel Casks.

One step back, of course, we have Holtec’s refusal to admit the costs of his flimsy 1/2 thick MPC canisters and their vented shells. Do they look like they are worth around $1 million or more each? https://miningawareness.wordpress.com/2016/04/18/holtec-refused-to-make-costs-available-to-us-gov-continues-to-suck-taxpayer-money/ If Kris Singh-Holtec would have admitted the costs, then it would have been possible to judge if the utility claims were just (ignoring the fact, of course, that the US taxpayer paying for the disposal of nuclear waste for the utilities is unjust in and of itself). Did the other spent fuel canister cask makers admit to their costs?

Take one more step back: Nuclear waste should not be a for-profit enterprise. It needs to be a for-safety enterprise. If the taxpayer is responsible then it should be non-profit, costs-only.

Compare this $4.5 billion to the almost $2 billion per year that the US DOE-NNSA spend on their policies of dumping foreign nuclear waste on America. This is directly stated costs, however. The real costs both immediate and long-term are higher. The countries dumping the nuclear waste on America pay sometimes a token packaging fee and sometimes nothing at all. But, hey, it’s free money to the bureaucrats and attorneys gotten off the backs of the struggling remnant of the US middle class, the working poor.

Most of the US government should just go home. They rob the poor taxpayer while doing more harm than good. That would help the US Debt enormously. Use their salary and benefits to properly contain and monitor and replace containment of nuclear waste on a not for profit basis. Hell, let them contain, monitor and replace containment of said nuclear waste — straight to hell boys… They appear so dishonest that they will have to be watched with bullwhip in hand, however. Some of the US attorneys who tried to bring Holtec to heel about his costs may be just enough to keep their jobs (or be rehired) and hold the bullwhip.
Carl Heinrich Bloch, Jesus Chasing the Money Changers

Fagg and Stouck: Lawyers for Nuclear Utilities Are Members of the Advisory Committee of the US Court of Federal Claims; Before Whom They Bring Their Clients’ Cases

Brad Fagg
Brad Fagg
“Advises” Court on How to Better Screw the US Taxpayer: “ In claims against the government, Brad maximizes recovery through a deep knowledge of Opposing counsel and presiding judges, and efficient deployment of pretrial resources.

Worthless Bureaucrats Who Need to Be Defrocked and Sent Home – Around 5 School Teachers Could Be Hired For What Each is Probably Paid
US Court of Claims

Welcome to the webpage for the U.S. Court of Federal Claims Advisory Council.
The purpose of the Advisory Council is to promote and improve the administration of justice in the country’s national trial court, the United States Court of Federal Claims.
http://www.uscfc.uscourts.gov/advisory-council What a sick joke: opposition lawyers advise on “improving the administration of justice“.

Member of the Advisory Committee for the US Court of Federal Claims:
Mr. Fagg “is lead counsel for most of the US nuclear utilities in their claims against the federal government regarding the government’s obligations to accept and dispose of spent nuclear fuel. He has secured multiple hundred-million-dollar settlements and trial verdicts for such clients, and then successfully defended the awards upon appeal. Under Brad’s leadership, Morgan Lewis teams have won the electric utility industry an aggregate of more than $2 billion in judgments and settlements.
http://www.uscfc.uscourts.gov/conferences/2015/speakers

His “winnings” from the US taxpayer jumped up from more than $1 billion to more than $2 Billion:
Brad Fagg 
Morgan, Lewis & Bockius LLP
Brad Fagg is a partner in the firm of Morgan Lewis in Washington, DC. He is a partner in the firm’s Litigation Practice and Co-leader of the firm’s Government Contracts and Energy Litigation Practices. Mr. Fagg has extensive civil trial and appellate experience, including all phases of pre-trial discovery, motions practice and briefing, hearings and trials, and briefing and arguing appeals.

Brad is lead counsel for most of the US nuclear utilities in their claims against the federal government regarding the government’s obligations to accept and dispose of spent nuclear fuel. He has secured multiple hundred-million-dollar settlements and trial verdicts for such clients, and then successfully defended the awards upon appeal. Under Brad’s leadership, Morgan Lewis teams have won the electric utility industry an aggregate of more than $2 billion in judgments and settlements.

In claims against the government, Brad maximizes recovery through a deep knowledge of Opposing counsel and presiding judges, and efficient deployment of pretrial resources. Brad also has experience with all manner of government contract disputes and counseling, the False Claims Act, civil fraud investigations, real estate joint ventures, class actions, and federal administrative issues. Brad represents clients in other industries in commercial, construction, and environmental matters.

Before joining Morgan Lewis, Brad served as a trial attorney in the Civil Division of the U.S. Department of Justice, handling civil fraud cases, procurement disputes, takings claims, and employment appeals. His trial work involved construction and other commercial contract disputes, including multi-million-dollar government contract claims, and civil fraud investigations.

In addition to other honors, Mr. Fagg served as the President of the U.S. Court of Federal Claims Bar Association in 2008, and he is a member of the Court of Federal Claims Advisory Council.http://www.uscfc.uscourts.gov/conferences/2015/speakers

Brad Fagg is a partner in Morgan Lewis’s Litigation Practice. Mr. Fagg represents sophisticated commercial clients in a wide variety of high stakes contractual and regulatory disputes, federal procurement matters, government and internal investigations, and pre-dispute counseling matters.

Mr. Fagg is a co-leader of the firm’s Energy Litigation Practice and a co-leader of the firm’s Government Contracting Practice. Since joining the firm in 1995, Mr. Fagg has handled scores of major matters for utilities and other energy companies, and has served as lead counsel for such companies in dozens of trials and appellate proceedings.

Mr. Fagg is lead counsel for a majority of the nuclear utilities in the country in connection with claims against the government for breach of the federal government’s obligation to accept and dispose of spent nuclear fuel+AOIgrCAd for such clients he has secured multiple hundred-plus million dollar settlements and trial verdicts, successfully defended such awards upon appeal, and led Morgan Lewis teams that have won the industry an aggregate of well over $1 billion in judgments and settlements. In claims against the government, Mr. Fagg maximizes recovery through a deep knowledge of opposing counsel and presiding judges, and efficient deployment of pretrial resources.

Prior to joining Morgan Lewis, Mr. Fagg was a trial attorney in the Civil Division of the U.S. Department of Justice, where he handled civil fraud cases, procurement disputes, takings claims, and employment appeals. His trial work included construction and other commercial government contract disputes, multimillion dollar government contract claims, and civil fraud investigations. At the appellate level, Mr. Fagg briefed and argued a number of matters before the U.S. Court of Appeals for the Federal Circuit and other courts of appeal.

Mr. Fagg is admitted to practice in the District of Columbia and New York, and before the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit, the U.S. Court of Federal Claims, and many federal district courts and regional courts of appeal.
Advisory Council: Emeritus Leadership
http://www.uscfc.uscourts.gov/brad-fagg

If Mr. Fagg Gets Stuck in Figuring Out How to Best Stick it to the Taxpayer, there’s Jerry Stouck on the Advisory Committee to Help Him
Gerry Stouck
Jerry Stouck
Jerry Stouck has a wide-ranging trial and appellate litigation practice. He has particular experience in complex business, regulatory and environmental disputes with government agencies, and is Co-Chair of the firm’s Government Litigation Practice.

Jerry represented the lead bank plaintiff in the landmark “-Winstar” litigation involving the government’s breach of hundreds of savings and loan merger agreements, and has represented several nuclear utility companies in damages litigation over the government’s failure to complete the Yucca Mountain repository for spent nuclear fuel.

Jerry regularly challenges federal agency action under a wide range of regulatory regimes. He also handles environmental and land use litigation, including related contract/commercial disputes, and has extensive experience with eminent domain and Fifth Amendment regulatory takings claims. Jerry appears frequently in the U.S. Court of Federal Claims and Federal Circuit, and in the D.C. federal district court and D.C. Circuit. Advisory Council: Emeritus Leadership
http://www.uscfc.uscourts.gov/jerry-stouck

Over a decade ago some honest US attorneys noted, apparently to no avail:
Holtec should not be able to use a highly regulated and publicly funded industry to make profits, but to refuse to provide information about the cask business when the information it possesses about cask costs are an integral part of the damages claimed by the plaintiff in this case. When faced with damages of the magnitude of those being claimed by ComEd, it is imperative that we determine the reasonableness of these claims against the Federal Treasury.” “COMMONWEALTH EDISON COMPANY, Plaintiff, v. No. 98-621C Judge Hewitt UNITED STATES, Defendant, Case 1:98-cv-00621-ECH , Document 288 , Filed 03/12/2004“, Page 6 of 9 See: https://miningawareness.wordpress.com/2016/04/18/holtec-refused-to-make-costs-available-to-us-gov-continues-to-suck-taxpayer-money/

Holtec appears to have never admitted the true costs of the 1/2 inch thick canisters, nor their vented casks, allowing an apparent free-for-all fleecing of the US taxpayer by Kris Singh-Holtec and the Nuclear utilities. Did the other cask-canister makers cooperate? If costs were known and properly billed there would be no case to go before this apparent sham of a Federal Court. And, how much in legal fees would have been saved? How much of the $4.5 billion is legal fees?

According to the US Congressional Research Office:
NWPA Section 302 authorized DOE to enter into contracts with U.S. generators of spent nuclear fuel and other highly radioactive waste; under the contracts, DOE was to dispose of the waste in return for a fee on nuclear power generation. The act prohibited nuclear reactors from being licensed to operate without a nuclear waste disposal contract with DOE, and all reactor operators subsequently signed them. As required by NWPA, the “standard contract” specified that DOE would begin disposing of nuclear waste no later than January 31, 1998.38

After DOE missed the contractual deadline, nuclear utilities began filing lawsuits to recover their additional storage costs—costs they would not have incurred had DOE begun accepting waste in 1998 as scheduled. DOE reached its first settlement with a nuclear utility, PECO Energy Company (now part of Exelon), on July 19, 2000. The agreement allowed PECO to keep up to $80 million in nuclear waste fee revenues during the subsequent 10 years. However, other utilities sued DOE to block the settlement, contending that nuclear waste fees may be used only for the DOE waste program and not as compensation for missing the disposal deadline. The U.S. Court of Appeals for the 11th Circuit agreed, ruling September 24, 2002, that any compensation would have to come from general revenues or other sources than the waste fund. Subsequent nuclear waste compensation to utilities has come from the U.S. Treasury’s Judgment Fund, a permanent account that is used to cover damage claims against the U.S. government. Payments from the Judgment Fund do not require appropriations.

Through FY2014, nuclear waste payments from the Judgment Fund included $3.2 billion from settlements and $1.3 billion from final court judgments, for a total of about $4.5 billion, according to DOE. By the end of FY2014, 33 lawsuits had been settled, representing utilities that generate 82% of U.S. nuclear electricity. Thirty-one cases had received final court judgments, and 19 cases remained pending.39 Under the settlements, utilities submit annual reimbursement claims to DOE for any delay-related nuclear waste storage costs they incurred during that year. Any disagreements over reimbursable claims between DOE and a utility would go to arbitration.

Utilities that have not settled with the Department of Justice have continued seeking damage compensation through the U.S. Court of Federal Claims. Unlike the settlements, which cover all past and future damages resulting from DOE’s nuclear waste delays, awards by the Court of Claims can cover only damages that have already been incurred; therefore, utilities must continue filing claims as they accrue additional delay-related costs.

DOE estimates that its potential liabilities for waste program delays could total as much as $27.1 billion, including the $4.5 billion already paid in settlements and final judgments.40

(For more information about nuclear waste litigation, see CRS Report R40996, Contract Liability Arising from the Nuclear Waste Policy Act (NWP A) of 1982, by Todd Garvey.)

Delays in the federal waste disposal program could also lead to future environmental enforcement action over DOE’s own high-level waste and spent fuel, mostly resulting from defense and research activities. Some of the DOE-owned waste is currently being stored in non-compliance with state and federal environmental laws, making DOE potentially subject to fines and penalties if the waste is not removed according to previously negotiated compliance schedules.” “Civilian Nuclear Waste Disposal” by
Mark Holt Specialist in Energy Policy, US Congressional Research Office, August 5, 2015, http://fas.org/sgp/crs/misc/RL33461.pdf (Emphasis added).

PLEASE NOTE THAT THIS IS NOT EVEN A PERMANENT SOLUTION. NUCLEAR POWER IS NEITHER CHEAP NOR CLEAN. AND NO ONE WANTS THE LETHAL NUCLEAR WASTE, PROBABLY BECAUSE THEY KNOW IT WON’T BE DONE RIGHT, LIKE WIPP.
WIPP 22 May 2014