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

Case 1:01-cv-00116-FMA

Document 191

Filed 11/14/2005

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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 25 days, to and including December 9, 2005. The Government's briefing is currently due on November 14, 2005. We have not previously sought an enlargement of time for this purpose. We deferred filing this motion for an enlargement until today, as we attempted to determine whether plaintiff, Nebraska Public Power District ("NPPD"), would oppose this motion after raising this enlargement request by telephone message with counsel for plaintiff on Thursday of last week. Counsel for plaintiff, Daniel Herzfeld, notified us this afternoon that NPDD does not oppose this motion. As evidenced by our most recent briefing, 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. Nevertheless, we are in the process of drafting significant briefing regarding the jurisdictional issues in the spent nuclear fuel ("SNF") cases for the United States Court of Appeals for the

Case 1:01-cv-00116-FMA

Document 191

Filed 11/14/2005

Page 2 of 4

Federal Circuit in PSEG Nuclear, LLC v. United States, No. 05-5162 (Fed. Cir.), for a brief that is currently due to be filed on December 1, 2005. Because the PSEG briefing will likely be the subject of significant discussion and review within the Department of Justice, we respectfully request that we be permitted to respond to the Court's request in the week following the week in which our PSEG brief is due. As we have recently recognized as we attempted to prepare our response to the Court's request for briefing in this case, the implications raised by the Court's request for briefing here 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 9, 2005 ­ the week following our PSEG filing ­ to file our response to the Court's October 14, 2005 order.1

Various other matters in SNF cases, including the two-week trial in Southern Nuclear Operating Co. v. United States, No. 98-614C (Fed. Cl.), that begin on October 17, 2005; several time-consuming and extensive discovery motions in Pacific Gas & Electric Co. v. United States, Nos. 04-0074 & 04-0075 (Fed. Cl.); closing arguments on October 27, 2005, in TVA v. United States, No. 01-249C (Fed. Cl.); and the Government's November 10, 2005 response to the plaintiff-appellant's petition for panel rehearing in Indiana Michigan Power Co. v. United States, No. 04-5122 (Fed. Cir.), have complicated our ability to develop our response to the Court's order. However, as we recognized as we attempted to prepare our response to this Court's October 14, 2005 order, even without these matters, we would still need to ensure a consistent and fully approved response regarding the complicated issue that the Court's order has identified and the related jurisdictional issues in PSEG, which necessitates this motion. -2-

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Case 1:01-cv-00116-FMA

Document 191

Filed 11/14/2005

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For the foregoing reasons, we respectfully request that the Court grant this unopposed motion for an enlargement of time. 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 November 14, 2005 Attorneys for Defendant

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Case 1:01-cv-00116-FMA

Document 191

Filed 11/14/2005

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CERTIFICATE OF FILING I hereby certify that on this 14th day of November, 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/ Harold D. Lester, Jr.