Yucca case returning to U.S. District Court

Suzanne Struglinski

Monday, Dec. 15, 2003 | 9:29 a.m.

WASHINGTON -- The Justice Department does not plan on asking the U.S. Court of Appeals to rehear a conflict-of-interest case brought against the Energy Department over a Yucca Mountain project contract.

The suit was filed by a law firm trying to get an estimated $16.5 million contract to review the Yucca Mountain project's license application, according to the Justice Department.

This means that by the end of the week, the U.S. Court of Appeals will be able to formally move the case back to the U.S. District Court in Washington, said attorneys familiar with the case.

No one would speculate on what will happen next since the case is still pending. It is unclear if the case would be conducted through paper negotiations or in another set of oral arguments in the District Court.

But if the court finds that the Energy Department didn't consider the potential conflicts with the Winston and Strawn, the law firm that initially won the contract, the court could award the contract to another law firm.

That could mean a delay in the project because all of Winston's work may need to be reviewed, said Washington attorney Joe Egan when the original court decision came down. Egan works for Nevada on its opposition to the planned Yucca Mountain nuclear waste storage site, 90 miles northwest of Las Vegas.

The law firm LeBoeuf, Lamb, Green and MacRae sued the Energy Department when it lost the $16.5 million contract to rival law firm Chicago-based Winston & Strawn. LeBoeuf said the other firm had conflicts of interest to do Yucca Mountain project review work since it had already done previous work for the main contracting company working on the project. Once Winston withdrew from the project in 2001, LeBoeuf thought it's firm should automatically get the contract but it did not.

The Energy Department is using a closed-method of seeking new legal counsel and will not confirm if a new law firm has been selected to review the project.

Winston stopped working on the project after the Energy Department's inspector general concluded the firm did not tell the DOE it had lobbied for the pro-Yucca Nuclear Energy Institute.

On Oct. 28, the appeals court sent the case back to the U.S. District Court in Washington to see if the Energy Department ruled out any conflict of interest actions before hiring former legal counsel.

"The department knew or should have known that awarding the Yucca Mountain contract to Winston created an apparent conflict of interests for Winston that required further scrutiny," according to the opinion filed by Judge Judith Rogers.

Rogers wrote that some facts were missing from the record that would have clearly shown how the department evaluated the contract. The lower court's opinion was not adequate for the appeals court to issue its own decision or award the contract to LeBoeuf, Rogers wrote.

The appeals court said the district court "shall" address whether awarding the contract to Winston violated Nevada's Code of Professional Responsibility, as set out in the Energy Department's own guidelines.

The district court also would determine if a direct award of the contract to LeBoeuf would be suitable.

The Justice Department had 45 days to ask the court to rehear the case before it could be officially moved back to the District Court. That timetable ended Friday and the Justice Department said it does not plan on filing for a rehearing.