Free Response to Motion - District Court of Federal Claims - federal

Case 1:07-cv-00157-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

PACIFIC GAS AND ELECTRIC COMPANY, SOUTHERN CALIFORNIA EDISON COMPANY, AND CALIFORNIA ELECTRICITY OVERSIGHT BOARD, Plaintiffs, v. THE UNITED STATES, Defendant. SAN DIEGO GAS & ELECTRIC COMPANY, a California corporation, Plaintiff, v. THE UNITED STATES, Defendant.

No. 1:07-cv-00157-LAS No. 1:07-cv-00167-LAS Consolidated HON. LOREN A. SMITH

PLAINTIFFS PACIFIC GAS AND ELECTRIC COMPANY, SOUTHERN CALIFORNIA EDISON COMPANY, AND SAN DIEGO GAS & ELECTRIC COMPANY'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE

Plaintiffs Pacific Gas and Electric Company, Southern California Edison, and San Diego Gas & Electric Company (together, "Plaintiffs") submit this joint opposition to the U.S.'s motion to strike Plaintiffs' surreply (June 17, 2008). For the following reasons, the U.S.'s motion should be denied. First, we do not have to remind the Court that the only reason this issue has come up is because the U.S. filed, without prior authorization, a 39-page reply brief, almost double the

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length permitted under the Court's Rules. Not only did the over-length reply include new points, it also greatly expanded on earlier arguments by making additional points that the U.S. chose not to include in its opening brief. Second, Plaintiffs were not limited in their surreply to addressing the two newly identified Bonneville Power Administration documents, as the U.S. suggests. Cf. Mot. at 2. In response to the unauthorized filing by the U.S. of its over-long reply brief, Plaintiffs asked the Court for permission to file a 10-page surreply. Plaintiffs' Opposition To Defendant's Motion For Leave To Exceed Page Limits And Plaintiffs' Unopposed Request To File Surreply (May 21, 2008), p. 3. Responding to that request, the U.S. specifically asked the Court to limit the scope of any surreply to "the two additional letters we provided" regarding the choice of law issue. Defendant's Reply To Plaintiffs' Response To Defendant's Motion For Leave To Exceed Page Limits (May 22, 2008), p. 2. The Court rejected the U.S.'s request, ordering instead that "Plaintiffs' may file a surreply brief, not to exceed 20 pages, addressing Defendant's new arguments on or before June 16, 2008." June 2, 2008 Order. Thus, the Court's Order granted Plaintiffs a 20 page surreply, 10 more than they had requested, and did not limit the scope of the surreply in the manner the U.S. had requested. Third, the surreply fully complies with the Court's Order. The surreply was filed on June 16, 2008 and it does not exceed 20 pages. And, it addresses the new and newly expanded arguments raised by the U.S. in its reply brief. This includes the choice of law argument (see surreply at 3-5), but it also includes other new arguments made by the U.S. For example, on page 2 of the surreply, Plaintiffs address Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006) and Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), two cases cited by the U.S. for the first time in its reply. Similarly, on page 6 of the surreply,

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Plaintiffs address the U.S.'s argument, made for the first time in its reply, that multi-party agreements are limited to cases involving "associations." U.S. Reply at 17. And, on pages 14-17 of the surreply, Plaintiffs address the U.S.'s greatly expanded argument that this Court should not even consider their claims arising under the PX Tariff because FERC, in an earlier proceeding a number of years ago, made an oblique statement about the nature of the PX market. Throughout the surreply, Plaintiffs have responded to the U.S.'s new or newly expanded arguments, as authorized by the Court in its June 2, 2008 Order. Finally, by putting our points in writing as opposed to merely presenting them at the hearing--as we would unquestionably be entitled to do--everyone benefits. The U.S. has more than a week prior to the hearing to consider Plaintiffs' arguments, and the Court too has a greater opportunity to consider Plaintiffs' position on the complex issues in this case. Rather than addressing these arguments extemporaneously at the hearing, Plaintiffs' surreply provides everyone with a better opportunity to make the most effective use of oral argument. The surreply is proper and the U.S.'s motion to strike should be denied. Nor should the hearing be delayed to provide the U.S. more time to respond. This case was initially filed on April 12, 2007. The U.S. has obtained numerous extensions of time that have pushed out this initial motion more than 14 months from the filing of our Complaint. There is nothing in the surreply that would warrant an extension of the hearing date and a further delay for Plaintiffs.

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Respectfully submitted, DATED: June 17, 2008 By: s/ Marie L. Fiala MARIE L. FIALA HELLER EHRMAN LLP 333 Bush Street San Francisco, CA 94104-2878 Telephone: (415) 772-6000 Facsimile: (415) 772-6268 ATTORNEY OF RECORD FOR PLAINTIFF PACIFIC GAS AND ELECTRIC COMPANY OF COUNSEL: RUSSELL P. COHEN HELLER EHRMAN LLP 333 Bush Street San Francisco, CA 94104-2878 Telephone: (415) 772-6000 Facsimile: (415) 772-6268 STAN BERMAN PEGGY J. WILLIAMS HELLER EHRMAN LLP 701 Fifth Ave, Suite 6100 Seattle, WA 98104-7098 Telephone: (206) 447-0900 Facsimile: (206) 447-0849 MARK PATRIZIO PACIFIC GAS AND ELECTRIC COMPANY 77 Beale Street, MailCode B30A San Francisco, CA 94105 Telephone: (415) 973-6344 Facsimile: (415) 973-5520 Attorneys for Plaintiff Pacific Gas and Electric Company

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DATED: June 17 , 2008

By: s/ Jane I. Ryan JANE I. RYAN STEPTOE & JOHNSON LLP 1330 Connecticut Avenue NW Washington, DC 20036 Telephone: (202) 429-3000 Facsimile: (202) 429-3902 ATTORNEY OF RECORD FOR PLAINTIFF SOUTHERN CALIFORNIA EDISON COMPANY

OF COUNSEL: DANIEL C. SAULS STEPTOE & JOHNSON LLP 1330 Connecticut Avenue NW Washington, DC 20036 Telephone: (202) 429-3000 Facsimile: (202) 429-3902 LEON BASS, JR. SOUTHERN CALIFORNIA EDISON COMPANY 2244 Walnut Grove Avenue Rosemead, CA 91770 Telephone: (626) 302-6967 Attorneys for Plaintiff Southern California Edison Company

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DATED: June 17, 2008

By: s/ Laura Lindgren LAURA LINDGREN HENNIGAN BENNETT & DORMAN LLP 865 S. Figueroa Street Los Angeles, California 90017 Telephone: (213) 694-1200 Facsimile: (213) 694-1234 ATTORNEY OF RECORD FOR PLAINTIFF SAN DIEGO GAS & ELECTRIC COMPANY

OF COUNSEL: J. MICHAEL HENNIGAN ROBERT W. MOCKLER HENNIGAN BENNETT & DORMAN LLP 865 S. Figueroa Street Los Angeles, California 90017 Telephone: (213) 694-1200 Facsimile: (213) 694-1234 Attorneys for Plaintiff San Diego Gas & Electric Company

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