Free Scheduling Order - District Court of Federal Claims - federal


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Case 1:98-cv-00614-JFM

Document 349

Filed 11/01/2006

Page 1 of 2

In the United States Court of Federal Claims
No. 98-614C (Filed November 1, 2006) ******************************* SOUTHERN NUCLEAR * OPERATING COMPANY, * ALABAMA POWER COMPANY, * GEORGIA POWER COMPANY, * * Plaintiffs, * * v. * * THE UNITED STATES, * * Defendant. * ******************************* ORDER This matter has been fully tried and post-trial briefing completed. It is under submission for resolution of plaintiffs' damages through December 31, 2004. However, after the conclusion of trial, in its Post-Trial Brief defendant stated that "[t]o the extent that the writ of mandamus [of Northern States Power Co. v. United States Department of Energy, 128 F.3d 754 (D.C. Cir. 1997), cert. denied, 525 U.S. 1015 & 1016 (1998)] were lifted or found ineffective, we would be able to assert [certain arguments that the delay in commencement of performance was "unavoidable" under the terms of the Standard Contract]. (Def.'s Post-Trial Br. 2 n.1.) Nebraska Public Power District v. United States, No. 01-116C (Fed. Cl. October 31, 2006) (J. Allegra) held that the D.C. Circuit's mandamus order in Northern States "is void and does not preclude defendant from arguing [in Nebraska Public Power District], inter alia, that it did not breach the Standard Contract based upon the unavoidable delays clause therein." Nebraska Public Power District, slip op. at 32. Without prejudging whether the undersigned is in accord with the ruling in Nebraska Public Power District, it is prudent at this juncture to vent whether, at this

Case 1:98-cv-00614-JFM

Document 349

Filed 11/01/2006

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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, or whether the issue has been waived. The briefs do not address this matter. Accordingly, supplemental briefing is requested on the issue of whether at this stage of the proceedings, the issue of the validity of the D.C. Circuit's writ of mandamus may be raised for consideration by the court. See B-E-C-K Constructors v. United States, 215 Ct. Cl. 793, 795, n.3, 571 F.2d 25, 28 n.3 (1978); Bennett Constr. Co. v. United States, 178 Ct. Cl. 61, 70-71, 371 F.2d 859, 864 (1967). Accordingly, 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.

s/ James F. Merow

James F. Merow Senior Judge

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