The U.S. Justice Department on Monday requested that a federal court hold off on ruling on South Carolina’s motion for summary judgment in its lawsuit over the breach of agreement for disposition of surplus defense plutonium now stored in the state.
The U.S. District Court for South Carolina should first rule on the federal government’s motion to dismiss the lawsuit, according to the DOJ motion. “The Court should resolve defendants’ preliminary objections before rushing into the potentially thorny and fact-bound issues that may arise on summary judgment,” it says. “A decision on the Motion to Dismiss may moot the Motion for Summary Judgment, or, at the very least, focus and narrow the issues.”
In a lawsuit filed in February, South Carolina said it is owed up to $100 million after the Department of Energy failed to meet the Jan. 1, 2016, deadline set under a 2003 agreement to process or ship outside the state 1 metric ton of plutonium held at the Savannah River Site. The defendants are DOE and its semiautonomous National Nuclear Security Administration.
The state is requesting that the court skip a trial and order DOE to immediately remove 1 metric ton of plutonium from the state, ship out another by the end of the year, and pay the $1 million per day fine that capped off in April. The federal government counters that the court does not have jurisdiction over much of the case, which it says should be heard in the Court of Federal Claims, and that the state has no cause of action under the federal Administrative Procedure Act to demand removal of the plutonium.
“Because a favorable decision on defendant’s Motion to Dismiss would put an end to this litigation, it would be a waste of the Court’s and the parties’ resources to require that plaintiff’s Motion for Summary Judgment be briefed concurrently with the Motion to Dismiss, which may require defendants to develop certain factual issues, explore merits-stage legal defenses, prepare declarations, and draft opposition papers,” DOJ said. “For this and similar reasons, courts within this Circuit routinely defer consideration of motions for summary judgment while dispositive motions to dismiss remain pending.”
The South Carolina Attorney General’s Office does not comment on pending litigation, spokeswoman Hayley Thrift said Tuesday.
Meanwhile, the Southern Carolina Regional Development Alliance this week also asked the court to reject the state’s motion to prevent the economic development group from intervening in the case as a plaintiff. The Alliance represents four counties in the Savannah River Site area, and argued in a March 31 motion that the region should get some portion of any money the state collects from the federal government.
While the state said the organization “cannot show that it possesses an interest in the subject matter of this action” and “is no different than … other citizens in the state,” the alliance countered this week that it has concrete interests in the region that it cannot be confident the state will advance.
“The State has litigated this very dispute with the Defendants quite recently (in 2014) and the resolution of that lawsuit resulted in neither the removal of one metric ton of plutonium, nor the attainment of the MOX production objective, nor the required economic and impact assistance, by the statutory deadlines,” the Southern Carolina Regional Development Alliance motion says. “In light of the history of litigation, the Court should not presume that in this litigation the State will adequately represent the interests of the Alliance or achieve compliance with the statute.”
The federal government has also opposed the Alliance’s attempted intervention in the lawsuit, arguing in its own motion to the court that “putative intervenor has not shown a legally protectable interest that is the subject of the action.”
