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

Case 1:07-cv-00184-LAS

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Filed 11/29/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ________________________________________________ ) THE PEOPLE OF THE STATE OF CALIFORNIA ) EX REL. EDMUND G. BROWN JR., ATTORNEY ) GENERAL OF THE STATE OF CALIFORNIA, and the ) CALIFORNIA DEPARTMENT OF WATER ) RESOURCES BY AND THROUGH ITS ) CALIFORNIA ENERGY RESOURCES SCHEDULING ) DIVISION, ) ) Plaintiffs, ) ) v. ) No. 07-184C ) (Senior Judge Smith) ) THE UNITED STATES, ) ) Defendant. ) ________________________________________________) DEFENDANT'S SECOND MOTION FOR AN ENLARGEMENT OF TIME TO FILE A RESPONSE TO PLAINTIFFS' COMPLAINT AND MOTION TO SET BRIEFING SCHEDULE Defendant respectfully requests an enlargement of time of 39 days, to and including January 8, 2008, within which to file our response to plaintiffs' complaint. Our response is now due to be filed on November 30, 2007. This is defendant's second request for an enlargement of time for this purpose. Counsel for plaintiffs has represented that plaintiffs do not oppose this request for an enlargement of time. Counsel for the United States has made extensive progress preparing defendant's response to plaintiffs' complaint. However, in the course of that preparation, defendant has encountered an issue requiring significant coordination between the relevant agencies and review by high level officials within the Department of Justice. This review is continuing and requires more time to complete. Until this review is finished, defendant cannot complete its response to plaintiffs' complaint. An enlargement until January 8, 2008, should provide defendant sufficient

Case 1:07-cv-00184-LAS

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time to finish its review and complete a response. Further, on September 10, 2007, this Court ordered defendant to file a response to plaintiffs' complaint by November 30, 2007, following defendant's request for an enlargement of time related to Supreme Court proceedings in BPA v. FERC, a matter related to this case. The Supreme Court has yet to decide whether it will grant the petition for a writ of certiorari filed by two of the plaintiffs in No. 07-157C.1 An extension of time until January 8, 2008, may provide sufficient time for the Supreme Court to act in BPA v. FERC. Accordingly, we request that the Court grant this enlargement of time. Finally, counsel for plaintiffs and counsel for defendant have consulted concerning an appropriate initial briefing schedule in this matter. Counsel have agreed upon defendant's January 8, 2008 deadline to file its response to plaintiffs' complaint. Counsel have also agreed that plaintiffs should file their opposition to defendant's response by March 14, 2008, and that defendant should file its reply to plaintiffs' opposition by April 14, 2008. Accordingly, defendant respectfully requests that the Court enter a scheduling order reflecting these dates. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director

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The petition has been scheduled for the Court's December 7, 2007 conference. 2

Case 1:07-cv-00184-LAS

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OF COUNSEL: Sean B. McNamara Trial Attorney Department of Justice Peter Burger Attorney Bonneville Power Administration John D. Bremer Attorney Western Area Power Administration November 29, 2007

s/ Mark A. Melnick MARK A. MELNICK 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) 616-0475 Fax: (202) 305-7644

Attorneys for Defendant

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Case 1:07-cv-00184-LAS

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CERTIFICATE OF FILING I hereby certify that on this 29th day of November, 2007, a copy of the foregoing " "DEFENDANT'S SECOND MOTION FOR AN ENLARGEMENT OF TIME TO FILE A RESPONSE TO PLAINTIFFS' COMPLAINT AND MOTION TO SET BRIEFING SCHEDULE" 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. The parties may access this filing through the Court's system.

s/ Mark A. Melnick

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