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

Case 1:98-cv-00614-JFM

Document 350

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. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 98-614C (Senior Judge Merow)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME TO RESPOND TO THE COURT'S ORDER DATED NOVEMBER 1, 2006 Pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully requests that the Court grant the an enlargement of the time of 21 days, to and including December 11, 2006, within which the parties must file briefing regarding the "unavoidable delays" clause in response to the Court's order dated November 1, 2006. Briefs from both parties currently are due today, November 20, 2006. The Government previously has not requested an enlargement of time for this purpose. M. Stanford Blanton, counsel for the plaintiffs, has represented that the plaintiffs oppose this motion. When the Court issued its order in this case on November 1, 2006, counsel for defendant was involved in the trial of Northern States Power Co. v. United States, No. 98-484C (Fed. Cl.) (Wiese, S.J.). The trial of that case is now not scheduled to conclude until Tuesday, November 21, or Wednesday, November 22, 2006, which is beyond the date upon which the trial was originally scheduled to conclude. With the work that has been required for the Northern States trial, which has required significant resources and the time of numerous attorneys who are assigned to the spent nuclear fuel litigation, we have simply not had sufficient time to complete

Case 1:98-cv-00614-JFM

Document 350

Filed 11/20/2006

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the briefing that the Court has ordered.1 Additionally, counsel has been working upon a response to the plaintiff's motion for reconsideration or amendment of the Court's findings and judgment filed in Pacific Gas & Electric Co. v. United States, 04-0074 (Hewitt, J.), which response also is due today. Finally, the upcoming Thanksgiving holiday further affects our ability to obtain resolution of this issue internally, requiring the additional 21 days.2 In light of the recent filing by the plaintiff of a motion to certify the Court's October 31, 2006 decision in Nebraska Public Power District v. United States, 01-116C (Allegra, J.), for interlocutory appeal, we must continue to consult about the issues that the Court's decision and the motion to certify raise at higher levels of the Department of Justice, a process that the motion to certify has affected. Many, if not all, of the issues involved in the response to the motion to certify are implicated by the briefing that the Court has requested here. For these reasons, and to allow us sufficient additional time to discuss the issues that the October 31, 2006 decision in Nebraska Public Power and the recent motion to certify in that case at the appropriate levels, we respectfully request that the Court grant us additional time to file the briefing regarding the Standard Contract's "unavoidable delays" clause in this case.

During the Northern States trial, we have also been required to address appeal issues relating to the Court's recent decisions in Yankee Atomic Electric Co., Connecticut Yankee Atomic Power Co., & Maine Yankee Atomic Power Co. v. United States, Nos. 98-126C, -154C, & -474C (Fed. Cl. Sept. 30, 2006), Pacific Gas & Electric Co. v. United States, Nos. 04-74C & 75C (Fed. Cl. Oct. 13, 2006), given that any notices of appeal in those cases are due recently shortly. Mr. Blanton represented that he would agree to a seven-day enlargement. However, the Thanksgiving holiday effectively eliminates the additional time that would be provided by such an enlargement. Under Mr. Blanton's proposed schedule, briefs would be due the Monday after Thanksgiving. -22

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Case 1:98-cv-00614-JFM

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For the foregoing reasons, we respectfully request that the Court grant this motion for an enlargement of time. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director OF COUNSEL: STEPHEN FINN JOSHUA E. GARDNER HEIDE L. HERRMANN MARIAN E. SULLIVAN Trial Attorneys Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 s/John C. Ekman JOHN C. EKMAN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington D.C. 20530 Tele: (202) 353-0897 Fax: (202) 307-2503 Attorneys for Defendant

November 20, 2006

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Case 1:98-cv-00614-JFM

Document 350

Filed 11/20/2006

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CERTIFICATE OF FILING I hereby certify that on this 20th day of November, 2006, a copy of foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME TO RESPOND TO THE COURT'S ORDER DATED NOVEMBER 1, 2006" 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/ John C. Ekman