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

Case 1:01-cv-00116-FMA

Document 215

Filed 11/20/2006

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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 UNOPPOSED 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 the parties an enlargement of the time of 21 days, to and including December 11, 2006, within which they must file briefing regarding the "unavoidable delays" clause in response to the Court's order dated October 31, 2006. The Government's brief is currently due today, November 20, 2006. Defendant has not previously requested an enlargement of time for this purpose. Counsel for plaintiff, Alex Tomaszczuk, has represented that plaintiff, Nebraska Public Power District ("NPPD"), does not oppose this motion.1 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 is now not scheduled to conclude until Tuesday, November 21, or Wednesday, November 22, 2006, which is beyond the date upon which the trial

Because of the press of business in Northern States Power Co. v. United States, No. 98-484C (Fed. Cl.), which we discuss below and in which counsel for plaintiff in this case is involved, we did not focus upon the necessity of this motion for an enlargement until towards of the end of last week, and we deferred filing this enlargement request until we knew plaintiff's position regarding this motion.

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Case 1:01-cv-00116-FMA

Document 215

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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 the briefing that the Court has ordered.2 In addition, particularly in light of the plaintiff's recent filing of a motion to certify this Court's October 31, 2006 decision 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. Finally, counsel for defendant in this case is leaving the National Courts Section, Commercial Litigation Branch, Civil Division, Department of Justice, and her last day in the office is scheduled for Tuesday, November 21, 2006. Although other attorneys, in addition to counsel for defendant, have been working upon the issues that the Court's October 31, 2006 decision implicates, her departure from the National Courts Section has complicated staffing issues regarding the spent nuclear fuel litigation. For these reasons, and 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, we respectfully request that the Court grant us additional time to file the briefing regarding the Standard Contract's "unavoidable delays" clause. For the foregoing reasons, we respectfully request that the Court grant this unopposed 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. We have also been required to respond to the plaintiff's motion for reconsideration in the Pacific Gas case, which the Court ordered us to file today. -2-

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Case 1:01-cv-00116-FMA

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

s/ Heide L. Herrmann HEIDE L. HERRMANN 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) 305-3315 Fax: (202) 307-2503 November 20, 2006 Attorneys for Defendant

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Case 1:01-cv-00116-FMA

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CERTIFICATE OF FILING I hereby certify that on this 20th day of November, 2006, a copy of foregoing "DEFENDANT'S UNOPPOSED 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.