Free Motion for Extension of Time to File Response/Reply - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS NEBRASKA PUBLIC POWER DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 01-116C (Judge Allegra)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully requests that the Court grant defendant an enlargement of the time of 11 days, to and including December 11, 2006, within which it must respond to plaintiff's motion to certify the Court's opinion dated October 31, 2006, for interlocutory appeal. The Government's response is currently due today, November 30, 2006. Defendant has not previously requested an enlargement of time for this purpose. At the close of business today, an associate of counsel for plaintiff, Alex Tomaszczuk, responded to counsel for defendant's prior voicemail message and represented that plaintiff, Nebraska Public Power District ("NPPD"), does not take a position regarding this motion. When the Court issued its opinion in this case on October 31, 2006, counsel for defendant was already in trial in Northern States Power Co. v. United States, No. 98-484C (Fed. Cl.) (Wiese, S.J.), and the trial of that case, which was originally scheduled to conclude on November 17, 2006, is still continuing and is now not scheduled to conclude until tomorrow, December 1, 2006. 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

Case 1:01-cv-00116-FMA

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fuel litigation, we have simply not had sufficient time to complete our efforts to analyze and obtain appropriate review of these matters by the appropriate individuals within the Department of Energy and the Department of Justice.1 Further, we must continue to consult about the issues that the Court's October 31, 2006 decision and the motion to certify raise at higher levels of the Department of Justice, a process that the motion to certify has affected. Finally, prior counsel for defendant in this case left the National Courts Section, Commercial Litigation Branch, Civil Division, Department of Justice, effective the week of November 20, 2006, further complicating our ability to complete our analysis and obtain appropriate instruction from more senior representatives within the Department of Justice regarding the manner in which they wish to proceed here. Presently, our substantive briefing upon the "unavoidable delays" defense is due to be filed by October 11, 2006. To allow us sufficient additional time to discuss the issues that the October 31, 2006 decision and the recent motion to certify raise at the appropriate levels and for more senior Department of Justice representatives to consider these issues together, we respectfully request that the Court grant us additional time to response to the plaintiff's motion to certify the Court's October 31, 2006 opinion, to and including December 11, 2006. For the foregoing reasons, we respectfully request that the Court grant this motion for an enlargement of time.

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. 04-0074C & -0075C (Fed. Cl. Oct. 13, 2006), given that any notices of appeal in those cases are due recently shortly. -2-

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

s/ David M. Cohen DAVID M. COHEN Director

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-0478 Fax: (202) 307-2503 November 30, 2006 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 30th day of November, 2006, a copy of foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME" 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/ Harold D. Lester, Jr.