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

Case 1:01-cv-00116-FMA

Document 193

Filed 12/08/2005

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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 enlarge the time within which defendant must submit its briefing on whether the mandamus issued by the United States Court of Appeals for the District of Columbia Circuit is binding in this proceeding, as requested by order dated October 14, 2005, by six days, to and including December 15, 2005. The Government's briefing is currently due on December 9, 2005. We were previously granted one enlargement of time for this purpose, of 25 days. Counsel for plaintiff, Nebraska Public Power District ("NPPD"), has indicated that NPPD does not oppose this motion. This Court previously granted the Government an enlargement of the time within which to submit its brief based upon the briefing schedule in PSEG Nuclear, LLC v. United States, No. 05-5162 (Fed. Cir.), which called for the Government's brief to be submitted on December 1, 2005. We have requested that the briefing schedule in that case be modified, and we now expect to file our brief on December 13, 2005. Therefore, for the reasons discussed below, the Government requests a further enlargement of time within which to submit its brief in the instant

Case 1:01-cv-00116-FMA

Document 193

Filed 12/08/2005

Page 2 of 4

case, to ensure that the Government's position with regard to the jurisdictional issues in the spent nuclear fuel ("SNF") cases is fully formulated. As we explained in our previous motion to enlarge, the issue that the Court has asked us to brief is complicated by the overlapping jurisdictional decisions of the D.C. Circuit and this Court. We are in the process of drafting significant briefing regarding the jurisdictional issues in the SNF cases for the United States Court of Appeals for the Federal Circuit in PSEG Nuclear, LLC v. United States, No. 05-5162 (Fed. Cir.), for a brief that we now expect to file on December 13, 2005. The implications raised by the Court's request for briefing in this case will likely be the subject of discussion within appropriate levels of the Department of Justice as we prepare to file our PSEG brief with the Federal Circuit. Given that fact, it seems appropriate to coordinate our discussions regarding the PSEG briefing and the briefing that the Court has requested in this case, and to ensure that our briefing in both cases is consistent and fully approved within appropriate levels of the Department. To allow us to provide for adequate review and discussion within the Department as we complete our appellate briefing and our response to the Court's inquiries here, we respectfully request that we be granted until December 15, 2005 ­ two days after our PSEG filing ­ to file our response to the Court's October 14, 2005 order. For the foregoing reasons, we respectfully request that the Court grant this unopposed motion for an enlargement of time.

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Case 1:01-cv-00116-FMA

Document 193

Filed 12/08/2005

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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) 514-4325 Fax: (202) 307-2503 December 8, 2005 Attorneys for Defendant

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Case 1:01-cv-00116-FMA

Document 193

Filed 12/08/2005

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CERTIFICATE OF FILING I hereby certify that on this 8th day of December, 2005, 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/ Heide L. Herrmann