Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:99-cv-00447-CFL

Document 389

Filed 04/03/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

BOSTON EDISON COMPANY, Plaintiff, v. UNITED STATES, Defendant.

No. 99-447C No. 03-2626C (Judge Lettow)

ENTERGY NUCLEAR GENERATION CO., Plaintiff, v. UNITED STATES, Defendant.

JOINT MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO RESPOND TO PLAINTIFF BOSTON EDISON COMPANY'S BILL OF COSTS Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims, plaintiff, Boston Edison Company ("Boston Edison"), and defendant, the United States, jointly request an enlargement of time of 28 days after the date of final judgment in this action, as defined by 28 U.S.C. § 2412(d)(2)(G), for the United States to respond to the bill of costs that Boston Edison filed on March 17, 2008. The Government's response to Boston Edison's request for costs is currently due on April 17, 2008. This is the first request by Boston Edison and the Government for an enlargement of time for this purpose. Counsel for plaintiff, Entergy Nuclear Generation 1

Case 1:99-cv-00447-CFL

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Company ("Entergy"), L. Jager Smith, Jr., has indicated that Entergy does not oppose this request. Pursuant to RCFC 54(d), a prevailing party may request the clerk to tax allowable costs by filing a bill of costs "within 30 days after the date of final judgment, as defined in 28 U.S.C. § 2412(d)(2)(G)." RCFC 54(d)(1)(A). In relevant part, the term "final judgment" is defined as a "judgment that is final and not appealable." 28 U.S.C. § 2412(d)(2)(G). Following the date that the judgment becomes no longer appealable, and upon the prevailing party's filing of the bill of costs, an adverse party may object to the bill of costs in its entirety or to any item claimed therein by filing objections within 28 days after the service of the bill of costs. See RCFC 54(d)(1)(B). On February 15, 2008, this Court entered judgment in this action. The Court's judgment is appealable until April 15, 2008. See RCFC 58.1; Rules 3(a)(1), 4(a)(1)(B) of the Federal Rules of Appellate Procedure. On March 17, 2008, before the appeals period had run, Boston Edison filed its bill of costs with the Court. Consistent with the procedures set forth in RCFC 54, Boston Edison and the Government request an enlargement of time of 28 days after the date on which final judgment in this case becomes no longer appealable or susceptible of review for the United States to respond to Boston Edison's bill of costs. This Court may enlarge the period within which to perform an act for cause shown before the expiration of the original period. See RCFC 6(b)(1). Here, there is good cause for an enlargement of time because there is, as yet, no final judgment in this action, and an enlargement of time would preclude any need for the parties to litigate whether Boston

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Edison prematurely filed its bill of costs. An enlargement of time would, therefore, achieve the objective of judicial economy. For the foregoing reasons, the parties respectfully request an enlargement of time of 28 days after the date on which final judgment in this case becomes no longer appealable or susceptible of review for defendant to respond to the bill of costs. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/Alan J. Lo Re ALAN J. LO RE Senior Trial Counsel Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 307-0226 Fax: (202) 307-2503

s/ Richard J. Conway Richard J. Conway DICKSTEIN SHAPIRO LLP 1825 Eye Street, N.W. Washington, D.C. 20006-5403 Tel: (202) 420-2200 Fax: (202) 420-2201

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Of Counsel: Bradley D. Wine Nicholas W. Mattia, Jr. Bernard F. Sheehan Dickstein Shapiro LLP 1825 Eye Street, N.W. Washington, D.C. 20006-5403 Attorneys for Plaintiff Boston Edison Company April 3, 2008

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 PATRICK B. BRYAN JOSHUA E. GARDNER ANTHONY W. MOSES Trial Attorneys U.S. Department of Justice Attorneys for Defendant April 3, 2008

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CERTIFICATE OF FILING I hereby certify that on this 3rd day of April 2008, a copy of the foregoing "JOINT MOTION FOR ENLARGEMENT OF TIME FOR DEFENDANT TO RESPOND TO PLAINTIFF BOSTON EDISON COMPANY'S BILL OF COSTS" 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/Patrick B. Bryan