Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

Document 203

Filed 05/17/2006

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on May 17, 2006) __________________________________________ ) NEBRASKA PUBLIC POWER DISTRICT, ) ) Plaintiff, ) ) v. ) No. 01-116C ) (Judge Allegra) THE UNITED STATES, ) ) Defendant. ) __________________________________________) PLAINTIFF'S MOTION TO DEFER ORAL ARGUMENT PENDING FEDERAL CIRCUIT DECISION Plaintiff Nebraska Public Power District ("NPPD"), through the undersigned counsel, respectfully files this motion to defer the June 1, 2006 oral argument in this case to a date no sooner than thirty calendar days from the date on which a decision is issued in PSEG Nuclear, L.L.C. v. United States, No. 05-5162, an appeal now pending before the United States Court of Appeals for the Federal Circuit (the "Federal Circuit"). 1 Counsel for NPPD has spoken with counsel for Defendant (the "Government"), Harold D. Lester, Jr., who has represented that the Government has not yet taken a position on this motion to defer oral argument. NPPD respectfully submits that a decision by the Federal Circuit in PSEG Nuclear could have a precedential effect on the instant case regarding the key issue of jurisdiction. The central issue in the PSEG Nuclear appeal is whether this Court has jurisdiction over a breach-of-contract damages claim under the Tucker Act, 28 U.S.C. § 1491(a), a claim identical to NPPD's breachof-contract damages claim in this case. The Federal Circuit's decision in PSEG Nuclear could also potentially address the "unavoidable delays" issue that will likely be the subject of the June 1, 2006 oral argument in this case.
1

The Federal Circuit held oral argument in PSEG Nuclear on May 1, 2006.

Case 1:01-cv-00116-FMA

Document 203

Filed 05/17/2006

Page 2 of 3

Just as importantly, although the Government agrees that this Court has jurisdiction over a breach-of-contract damages claim under the Tucker Act, its response brief in PSEG Nuclear, which the Government attached to its December 27, 2005 filing in this case, seeks to challenge whether the U.S. Court of Appeals for the District of Columbia Circuit had the authority to issue the mandamus order it issued in Northern States Power Co. v. Dep't of Energy, 128 F.3d 754 (D.C. Cir. 1997) ("Northern States I") precluding the Government from relying upon the Standard Contract's "Unavoidable Delays" clause. 2 Although the plaintiffs-appellants in PSEG Nuclear maintain that the "Unavoidable Delays" issue is not relevant in that case and merely a pretext to seek an advisory opinion from the Federal Circuit regarding the propriety of Northern States I (and that the Federal Circuit's companion decisions in Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed. Cir. 2000) and Northern States Power Co. v. United States, 224 F.3d 1361 (Fed. Cir. 2000), disposed of the "Unavoidable Delays" issue on the merits), it is possible that the Federal Circuit when it decides PSEG Nuclear will address the Government's "Unavoidable Delays" argument ­ in language that could be binding on this Court (and this case in particular). Thus, until the Federal Circuit issues a decision in PSEG Nuclear, holding an oral argument would not be an efficient use of either the Court's or the parties' resources. Furthermore, a deferral of the June 1, 2006 oral argument date would not significantly delay the schedule in this case, as no damages trial or discovery dates have yet been established and this case remains in a relatively preliminary posture.

The Government states in its PSEG Nuclear response brief that this Court "has requested briefing [in this case] upon the arguments that the Government would make regarding the `Unavoidable Delays' clause if it were not barred from doing so by the D.C. Circuit's writ of mandamus." Defendant-Appellee's Brief at 57 n.15 (Dec. 23, 2005). 2

2

Case 1:01-cv-00116-FMA

Document 203

Filed 05/17/2006

Page 3 of 3

CONCLUSION For the foregoing reasons, NPPD respectfully requests that the Court defer the June 1, 2006 oral argument in this case to a date no sooner than thirty days after the Federal Circuit issues its decision in PSEG Nuclear.

Dated: May 17, 2006

Respectfully submitted,

Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 (202) 663-8000 (202) 663-8007 (fax)

s/ Alex D. Tomaszczuk by s/ Jack Y. Chu Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Nebraska Public Power District

3