Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

Document 212

Filed 10/11/2006

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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 MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY Defendant, the United States, respectfully requests that the Court grant it leave to file a "Notice of Supplemental Authority," a copy of which is attached to this motion, to inform the Court of a decision recently issued by United States Court of Appeals for the Federal Circuit. That decision, issued in PSEG Nuclear LLC v. United States, Fed. Cir. No. 05-5162, on September 29, 2006, is directly relevant to the Court's consideration of issues related to the "Unavoidable Delays" clause of the Standard Contract concerning the disposal of spent nuclear fuel. The decision of the Federal Circuit in PSEG Nuclear addresses the scope of this Court's jurisdiction to entertain claims for breach of the Standard Contract and, in turn, the scope of the jurisdiction of the regional courts of appeals, including the United States Court of Appeals for the District of Columbia Circuit, to entertain challenges to the actions of the Department of Energy pursuant to the Nuclear Waste Policy Act. The scope of the respective jurisdictions of these courts defines the authority of the D.C. Circuit to issue a writ of mandamus with respect to the Government's reliance upon the Unavoidable Delays clause to justify delays in performance of the Standard Contract. At the Court's request, the parties have extensively briefed the issue of

Case 1:01-cv-00116-FMA

Document 212

Filed 10/11/2006

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whether the writ of mandamus would be subject to collateral attack if the D.C. Circuit lacked jurisdiction to issue the writ of mandamus, or if the issuance of such a writ was not supported by a waiver of sovereign immunity. As a result, the PSEG Nuclear decision is directly relevant to issues that are currently before the Court. For the foregoing reasons, defendant respectfully requests that the Court grant this motion. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

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

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585 ANDREW P. AVERBACH Trial Attorney U.S. Department of Justice Washington, D.C. 20530 October 11, 2006

s/ Heide L. Herrmann by Andrew P. Averbach 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) 514-4325 Fax: (202) 307-2503

Attorneys for Defendant

Case 1:01-cv-00116-FMA

Document 212

Filed 10/11/2006

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Certificate of Filing I hereby certify that on the 11th day of October 2006, a copy of the foregoing "DEFENDANT'S MOTION FOR LEAVE TO FILE NOTICE OF 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/ Andrew P, Averbach