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Case 1:98-cv-00488-SGB

Document 364

Filed 07/21/2006

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) SACRAMENTO MUNICIPAL UTILITY DISTRICT ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) )

No. 98-488 C (Judge Braden)

SMUD'S FILING OF PROPOSED MODIFICATION TO LABOR COSTS IN TABLE A Pursuant to the Court's Order Requesting Supplemental Expert Testimony dated March 31, 2006, and the Court's Scheduling Order dated June 28, 2006, plaintiff Sacramento Municipal Utility District ("SMUD") files the attached Proposed Modification to Labor Costs in Table A and Written Direct Testimony of Brian P. Brinig Related to Proposed Modification to Labor Costs in Table A. The Court's March 31, 2006 Memorandum Opinion limits SMUD's labor costs to the 16 employees who charged the majority of their time to the dry storage project. Memorandum Opinion at 63-64. In identifying the employees who charged the majority of their time to the dry storage project, the Court relied upon the testimony of the government's accounting expert, Stephen Kiraly, of Navigant Consulting. Id. (citing Transcript at 2737 and DX 2003 at EXS0050082-86). Mr. Kiraly, however, based his analysis of the percentage of time that SMUD employee's charged to the dry storage project upon the entire 12-year period at issue in this case, 1992 through 2003, see DX 2003 at EXS0050082-90, not the shorter six-year period for which the Court awarded mitigation damages, see Memorandum Opinion at 66.

Case 1:98-cv-00488-SGB

Document 364

Filed 07/21/2006

Page 2 of 3

SMUD's Proposed Modification to Labor Costs in Table A modifies the labor and indirect labor costs to include costs attributable to the 37 employees who charged the majority of their time to the dry storage project during the period for which the Court awarded mitigation damages, May 15, 1997 through December 31, 2003. Brian Brinig is a Certified Public Accountant who previously testified in the case for SMUD as an expert witness regarding SMUD's costs. In the attached materials, Mr. Brinig identified the SMUD employees who charged a majority of their time to the dry storage project during the period from May 15, 1997 through December 31, 2003 and determined the labor costs attributable to that work; his written direct testimony explains his methodology, analysis, and findings. Dated the 21st day of July, 2006. Respectfully submitted,

/s/ Howard N. Cayne Howard N. Cayne ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004 (202) 942-5656 Counsel of Record for Plaintiff Sacramento Municipal Utility District Of Counsel: David S. Neslin Timothy R. Macdonald ARNOLD & PORTER LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202 (303) 863-1000

Case 1:98-cv-00488-SGB

Document 364

Filed 07/21/2006

Page 3 of 3

CERTIFICATE OF FILING I certify that I caused a copy of the foregoing SMUD'S FILING OF PROPOSED MODIFICATION TO LABOR COSTS IN TABLE A to be filed electronically through the Court of Federal Claims Case Management/ Electronic Case Filing System on July 21, 2006. I understand that all parties may access the filing through the Court's CM/ECF System, including:

Harold D. Lester, Jr. Russell A. Shultis Commercial Litigation Branch, Civil Division Attention: Classification Unit, 8th Floor U.S. Department of Justice 1100 L Street, N.W. Washington, D.C. 20530

s/ Timothy R. Macdonald