Free Response - District Court of Federal Claims - federal

Case 1:98-cv-00614-JFM

Document 351

Filed 11/20/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SOUTHERN NUCLEAR OPERATING COMPANY; ALABAMA POWER COMPANY; and GEORGIA POWER COMPANY Plaintiffs, v. THE UNITED STATES OF AMERICA Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 98-614C (Senior Judge Merow)

PLAINTIFFS' OPPOSITION TO THE DEFENDANT'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS SUPPLEMENTAL BRIEF AND PLAINTIFFS' MOTION FOR LEAVE TO FILE ITS BRIEF SIMULTANEOUSLY WITH THE GOVERNMENT'S BRIEF

On November 1, 2006, this Court ordered "on or before November 20, 2006, the parties are requested to file simultaneous supplemental briefs addressing the foregoing. Responsive briefs may be filed on or before December 15, 2006." (Dkt. 349, Order at p. 2.) Southern stands ready to file its brief simultaneously with the Government. Today, however, counsel for the Government informed the undersigned that the Government would seek a 21-day extension of this Court's November 1, 2006, filing deadline. Alabama Power Company, Georgia Power Company, and Southern Nuclear Operating, Inc. (collectively, "Southern") oppose this extension because: (1) the validity of the mandamus order issued in Northern States Power Co. v. United States, 128 F. 3d 754 (D.C. Cir. 1997), cert. denied, 525 U.S. 1015 & 1016 (1998), is the Government's argument; (2) the Government has

Case 1:98-cv-00614-JFM

Document 351

Filed 11/20/2006

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previously made that argument in Nebraska Public Power District v. United States, No. 01-116C (Dkt. 168, Def.'s Response to Pl.'s Mot. for Reconsideration); and (3) the Government has the obligation to show whether it raised or waived its own argument in this case. The Government has had 19 days to write a brief addressing the straightforward issue framed by this Court: "whether at this stage of the proceeding, the issue of the validity of the D.C. Circuit's writ of mandamus may be raised for consideration by the court." (Dkt. 349, Order at pp. 1-2.) No further delay is appropriate. Southern has worked on its brief over the last 19 days and stands ready to file it simultaneously with the Government today or on a future date ordered by this Court. In order to preserve the simultaneous filing procedure set forth in this Court's November 1, 2006 Order, Southern respectfully moves for leave to file its brief on the date the Government is ultimately ordered to file its brief or on the next business day following this Court's order denying the Government's motion.

DATED: November 20, 2004

Respectfully submitted, /s M. Stanford Blanton BALCH & BINGHAM LLP 1710 Sixth Avenue South Birmingham, AL 35203 (205) 251-8100

OF COUNSEL: Ed R. Haden KC Hairston BALCH & BINGHAM LLP 1710 Sixth Avenue South Birmingham, AL 35203 (205) 251-8100

Ronald A. Schechter Jeffrey L. Handwerker ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000

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Case 1:98-cv-00614-JFM

Document 351

Filed 11/20/2006

Page 3 of 3

CERTIFICATE OF FILING I hereby certify that on this 20th day of November, 2006, a copy of the foregoing "PLAINTIFFS' OPPOSITION TO THE DEFENDANT'S MOTION FOR AN EXTENSION OF TIME TO FILE ITS SUPPLEMENTAL BRIEF AND PLAINTIFFS' MOTION FOR LEAVE TO FILE ITS BRIEF SIMULTANEOUSLY WITH THE GOVERNMENT'S BRIEF" 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 M. Stanford Blanton OF COUNSEL