Free Motion for Leave to Exceed Page Limit - District Court of Federal Claims - federal

Case 1:01-cv-00116-FMA

Document 183

Filed 08/05/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on August 5, 2005) __________________________________________ ) NEBRASKA PUBLIC POWER DISTRICT, ) ) Plaintiff, ) ) v. ) No. 01-116C ) (Judge Allegra) THE UNITED STATES, ) ) Defendant. ) __________________________________________)

PLAINTIFF'S UNOPPOSED MOTION FOR LEAVE TO EXCEED PAGE LIMIT Plaintiff Nebraska Public Power District ("NPPD"), through the undersigned counsel, respectfully requests leave to exceed the 50-page limit established by the Court's June 21, 2005 Order for NPPD's brief "which responds to defendant's motion [on the `unavoidable delays' issue] and updates its briefs on the four outstanding dispositive motions." NPPD's brief is due to be filed on or before August 12, 2005. NPPD requests that the page limit be enlarged to 75 pages in order to respond to Defendant's ("the Government") June 17, 2005 supplemental brief and July 8, 2005 brief on the "unavoidable delays" issue and to update NPPD's briefs ­ and in one instance, to complete the briefing permitted by this Court's rules ­ on the four outstanding dispositive motions in this case. Counsel for the Government, Harold D. Lester, Jr., has represented that the Government does not oppose this motion. FACTUAL BACKGROUND In response to the Government's November 28, 2001 motion for summary judgment on the rate of spent nuclear fuel acceptance (commonly known as the "acceptance rate"), NPPD on December 13, 2002 filed a response and cross-motion for partial summary judgment on the

Case 1:01-cv-00116-FMA

Document 183

Filed 08/05/2005

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acceptance rate. In response to this cross-motion, the Government on April 11, 2003 filed an 80page reply to NPPD's response and opposition to NPPD's cross-motion (the Government obtained, without opposition from NPPD, leave of this Court to exceed the page limitation on that document). With this brief, the Government also filed a 760-page supplemental appendix. The parties' briefing on the acceptance rate was then suspended as a result of the Chief Judge's April 16, 2003 Order staying all "non-lead" spent nuclear fuel damages cases in this Court. This stay was lifted by the Chief Judge's January 30, 2004 Order. Judge Sypolt, who was the presiding judge in this case until January 31, 2005, never directed NPPD to file a reply in support of its cross-motion for partial summary judgment on the acceptance rate after the Chief Judge's stay was lifted.1 On June 17, 2005 the Government filed, in response to the Court's May 4, 2005 Order, a 29-page supplemental brief on the acceptance rate.

DISCUSSION As part of its brief, NPPD first needs to respond to the Government's April 11, 2003 acceptance rate brief and June 17, 2005 supplemental brief before updating its filings on the other outstanding dispositive motions. Given the considerable length of the Government's two most recent briefs on the acceptance rate (109 pages in total), as well as the legal and factual complexities of that issue, it would be difficult for NPPD to file a reply within 50 pages that fully responds to all of these Government arguments.2 Since NPPD must also brief and respond to the Government's July 8, 2005 filing and update NPPD's briefs on the other outstanding dispositive
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In light of Judge Sypolt's failure to rule on nearly identical and fully-briefed motions on the acceptance rate in her "lead" case, Florida Power & Light Co. v. United States, No. 98-483C, the undersigned counsel presumed this case remained stayed pending the outcome of Florida Power, notwithstanding the Chief Judge's January 30, 2004 Order. 2 For example, in February 2005 the undersigned counsel filed a 55-page reply brief on the acceptance rate in Omaha Pub. Power Dist. v. United States, No. 01-115C (Braden, J.).

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Case 1:01-cv-00116-FMA

Document 183

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motions, more than 50 pages is required. NPPD respectfully maintains that 75 pages would provide reasonable and sufficient length to complete the briefing on the acceptance rate issue, to respond to the Government's July 8, 2005 brief on the "unavoidable delays" issue, and to update NPPD's briefs on the other outstanding dispositive motions (e.g., the Government's November 2001 motion to dismiss Count III of NPPD's Complaint on takings and NPPD's November 2002 motion for summary judgment on liability).

CONCLUSION To fully and fairly complete the briefing in this case, NPPD respectfully requests leave to exceed, by 25 pages, the 50-page limit as directed in the Court's June 21, 2005 Order for NPPD's brief to respond to the Government's argument on the "unavoidable delays" issue and to update NPPD's briefs on the four outstanding dispositive motions in this case.

Dated: August 5, 2005

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

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