Free Motion for Extension of Time to File Answer - District Court of Federal Claims - federal

Case 1:08-cv-00237-JFM

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Filed 06/03/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ALABAMA POWER COMPANY; GEORGIA POWER COMPANY; and SOUTHERN NUCLEAR OPERATING COMPANY, INC., Plaintiffs, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 08-237C (Senior Judge Merow)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME, ONE DAY OF OUT OF TIME Pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully requests that the Court grant defendant an enlargement of 45 days, to and including July 17, 2006, to respond to plaintiffs' complaint. Defendant's response was due on June 2, 2008, but, because of an inadvertent calendaring error, we did not timely identify that deadline and are filing this motion one day out of time. The Government has not previously filed an enlargement of time for this purpose. We attempted to contact counsel for plaintiffs, M. Stanford Blanton, regarding this motion and left him a voicemail regarding this matter, but he has not yet communicated plaintiffs' position to us. As the Court is aware, this case is one of 71 cases that have been filed in this Court seeking damages for the Department of Energy's delay in beginning spent nuclear fuel ("SNF") acceptance from commercial nuclear utilities under the "Standard Contract For Disposal Of Spent Nuclear Fuel And/Or High-Level Radioactive Waste," the terms of which are published at 10 C.F.R. § 961.11. This particular case involves the same plaintiffs that were parties to Southern Nuclear Operating Co. v. United States, No. 98-614C (Fed. Cl.), in which the Court recently entered a final judgment that is now the subject of an appeal and cross-appeal in the

Case 1:08-cv-00237-JFM

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United States Court of Appeals for the Federal Circuit, Southern Nuclear Operating Co. v. United States, Nos. 2008-5020, -5028 (Fed. Cir. docketed Jan. 3, 2008). The Court in Southern Nuclear awarded the plaintiffs damages incurred through December 31, 2004. In this case, those same plaintiffs seek damages for costs incurred after December 31, 2004. See Complaint ¶ 7. This case likely implicates many of the same issues that are before the Federal Circuit in the pending Southern Nuclear appeal. We are evaluating the most appropriate means of proceeding in this case, given that issues underlying many of the plaintiffs' damages claims here (including issues that relate to causation analyses and causation holdings) are likely to be addressed in the pending appeal, making it necessary to continue litigating them in this case pending a final decision by the Federal Circuit. However, we have not yet identified, or discussed with counsel for plaintiffs, how to proceed here. We need additional time to undertake the appropriate analysis and discussion for several reasons, including the fact that the attorney currently with the Department of Justice who was mainly responsible for the Southern Nuclear litigation is on maternity leave and is not expected to return to our office until June 15, 2008, after which time she will need sufficient time to review her assigned matters and organize her workload. In addition, there are several SNF matters that have been requiring the attention of other attorneys assigned to the SNF cases, including the recent trial in Dominion Resources, Inc. v. United States, Nos. 04-83C & -84C (Fed. Cl.), the upcoming trial in Dairyland Power Cooperative v. United States, No. 04-106C (Fed. Cl.), and numerous depositions in several SNF cases, making it inefficient to assign a new attorney unfamiliar with the Southern Nuclear litigation to this case when prior counsel for the Government is soon returning to the office. We believe that, with an enlargement of 45 days, we

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Case 1:08-cv-00237-JFM

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can develop an appropriate strategy for proceedings in this case and can discuss potential strategies with counsel for plaintiffs. For the foregoing reasons, we respectfully request that the Court grant this motion for an enlargement of time. Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General

s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington D.C. 20530 Tele: (202) 616-0478 Fax: (202) 307-2503 June 3, 2008 Attorneys for Defendant

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Case 1:08-cv-00237-JFM

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CERTIFICATE OF FILING I hereby certify that, on this 3rd day of June, 2008, a copy of foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME, ONE DAY OUT OF TIME" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Harold D. Lester, Jr.