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

Case 1:98-cv-00484-JPW

Document 220

Filed 10/08/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NORTHERN STATES POWER COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 98-484C (Judge Wiese)

DEFENDANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY Pursuant to Rule 7(b) of the rules of this Court, defendant, the United States, respectfully requests that the Court grant us leave to file supplemental authority to support defendant's motion to strike portions of the pleadings filed by the plaintiff, Northern States Power Company ("Northern States"), in response to our motion for partial summary judgment regarding the rate of spent nuclear fuel acceptance. The recent decision of this Court, Power Authority of the State of New York v. United States, No. 00-733C, 2004 WL 2212088 (Fed. Cl. Sept. 30, 2004) (Damich, C.J.) ("NYPA"), provides further support for our motion to strike Northern States' references to settlement documents. A copy of the NYPA decision is attached.1 The motion to strike that we filed in NYPA is virtually identical to the motion to strike that we filed in this case. In NYPA, this Court considered the Government's motion to strike the plaintiff's attempt to introduce into evidence the substance of the Department of Energy's ("DOE") settlement agreement with PECO Energy Company ("PECO") in violation of Federal

Even though, by order dated October 5, 2004, the Court has deferred decision upon our motion in this case, the NYPA decision is appropriate for the Court's consideration.

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Case 1:98-cv-00484-JPW

Document 220

Filed 10/08/2004

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Rule of Evidence 408.2 In NYPA, the Court held that, "The nexus between the questions of rate and damages is sufficiently close and the factual inquiries so closely intertwined that the purpose and spirit of Rule 408 would be contravened by the admission of the [settlement documents]." Id. at *4. Finally, this Court noted, "[W]hen the applicability of Rule 408 is a close call, the court should lean toward exclusion." Id. (citation omitted) Because the documents upon which Northern States seeks to rely in this case are identical to those upon which this Court ruled in NYPA, and because our motion to strike in this case is identical to that considered by this Court in NYPA, we respectfully request that the Court grant us leave to file this supplemental authority to support our motion to strike. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

In fact, the same pleadings and the references to the same documents are the subject of our motion in this case. 2

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Case 1:98-cv-00484-JPW

Document 220

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OF COUNSEL: JANE K. TAYLOR MARTHA S. CROSLAND Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

s/ R. Alan Miller R. ALAN MILLER 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) 514-4325 Fax: (202) 307-2503 Attorneys for Defendant

October 8, 2004

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Case 1:98-cv-00484-JPW

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CERTIFICATE OF SERVICE I hereby certify that on this 8th day of October 2004, a copy of foregoing "DEFENDANT'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY" 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/ R. Alan Miller