Court to decide on whether law firm should get Yucca pact

Suzanne Struglinski

Wednesday, Sept. 17, 2003 | 9:34 a.m.

WASHINGTON -- A federal court will decide if a previously rejected law firm should be awarded an Energy Department contract to review legal aspects of the Yucca Mountain project.

The U.S. Court of Appeals for the D.C. Circuit heard oral arguments on the matter Tuesday morning.

The law firm -- LeBoeuf, Lamb, Greene and MacRae -- sued the department on conflict of interest charges, saying a rival law firm, Winston & Strawn, should not have been selected for the contract because it had previously represented TRW Environmental Safety Services, the former main contracting firm working at the Yucca Mountain Project.

Both firms earned a perfect score on the previous bid evaluation for the project, but LeBoeuf's bid was $3.7 million higher.

The Chicago-based Winston & Strawn eventually withdrew from the $16.5 million contract in 2001 after the department's inspector general concluded the firm did not tell the Energy Department it had lobbied for the pro-Yucca Nuclear Energy Institute. Winston & Strawn denied any conflict but resigned anyway.

In July 2002 a U.S. District Court ruled in favor of the department, saying the case was moot since the old contract no longer existed and the department did not indicate it still wanted outside counsel.

It's uncertain whether the project still lacks legal representation.

Justice Department lawyer Harold Lester Jr., who represented the Energy Department before the court today, said that it was his understanding that no new law firm had been hired. Rumors are, however, that Morgan and Lewis is getting the contract.

That firm would neither confirm nor deny those rumors.

James Feldesman, an attorney with Feldesman, Tucker, Leifer, Fidell, who represented LeBoeuf, said the department "ignored rules of professional responsibility" with regard to Winston & Strawn's work for the previous Yucca contractor and the nuclear industry.

He asked the court to order the department to put LeBoeuf back in the same position it was in before it awarded the work to Winston & Strawn.

Judge David Tatel questioned the validity of all the documents in the court record related to the case, asking how he could be sure other facts did not exist that could affect the judgment, while Judge David Sentelle said he was not certain putting LeBoeuf back in the same position was possible, since some of the work has already been done.

Tatel also asked: If the court did determine a conflict, why should the department choose to rely on old information instead of starting over?

Lester said the department is entitled to work on the reviews in-house and that future contracting work would not be the same as submitted in 1999.

After the hearing, Feldman said the court's acknowledgement that there could be a conflict was reassuring.

The leader of Nevada's Yucca legal team, Joe Egan, of Virgnia-based Egan, Fitzpatrick and Malsch, said once the court makes a decision in this case, that decision will show how conflicts of interest play out in the Yucca Mountain controversy either with contractors, the quality assurance programs or law firms.

Egan said he did not know if Tuesday's hearing would prompt the department to announce a new law firm.