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

Case 1:01-cv-00116-FMA

Document 178

Filed 06/17/2005

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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 MOTION FOR AN ENLARGEMENT OF TIME TO FILE BRIEFING REGARDING THE "UNAVOIDABLE DELAYS" CLAUSE Pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully requests that the Court grant the Government an additional period of time of 14 days, to and including July 8, 2005, within which to comply with that portion of the Court's May 4, 2005 order relating to the "unavoidable delays" clause in the Standard Contract. We are filing the other briefing contemplated by the Court's May 4, 2005 order today. Previously, defendant had requested two enlargements of time for this purpose totalling 14 days, seeking to enlarge the time for filing the "unavoidable delay" briefing, as well as the other briefing updating the four pending partially dispositive motions, to June 17, 2005. Counsel for plaintiff, Nebraska Public Power District ("NPPD"), has indicated that it is checking with NPPD to determine its position upon this motion. The Court's May 4, 2005 order contemplates that the Government will file briefing (1) regarding the "unavoidable delays" issue identified in its response to the Court's October 14, 2004 show cause order and the Government's February 11, 2005 response to the plaintiff's motion for reconsideration and (2) updating the case law discussion relating to the four pending partially dispostive motions previously filed in this case. Today, we are filing our update to our

Case 1:01-cv-00116-FMA

Document 178

Filed 06/17/2005

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previously filed briefing, discussing court decisions issued since the Government filed its prior briefing on those motions, in the context of the arguments that were raised in the Government's prior briefing. However, with regard to the "unavoidable delays" issue, we have been asked to seek additional time to file our briefing regarding that matter. As we explained in our February 11, 2005 response to the plaintiff's motion for reconsideration, the United States Court of Appeals for the District of Columbia Circuit has considered the "unavoidable delays" clause and has issued a writ of mandamus relating to it. As we have continued to investigate and develop arguments relating to the "unavoidable delays" clause, we have continued to consider the extent to which we can attempt to seek permission to make arguments regarding that clause in this Court. At the present time, significant effort is being devoted to this inquiry, and we are involving individuals at higher levels both in the Department of Justice and the Department of Energy. Before we present further positions to the Court regarding this issue, we want to ensure that they are fully considered at appropriate levels within the Government and include a complete and thorough evaluation of the jurisdiction of both the District of Columbia Circuit pursuant to the Nuclear Waste Policy Act, 42 U.S.C. § 10139, and this Court pursuant to the Tucker Act. We have been informed that additional time is necessary for this review and evaluation. To ensure that our request does not unduly delay efforts to allow this case to proceed, we are filing our update of prior briefing in this case today. We do not anticipate that this motion will preclude argument upon all of the pending motions, which is scheduled to occur in midSeptember 2005. Although we had hoped to be able to file our complete position regarding the "unavoidable delays" clause today, circumstances have precluded that effort. With this

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Case 1:01-cv-00116-FMA

Document 178

Filed 06/17/2005

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requested enlargement, we should be in a position to present a complete and final position upon the applicability of the "unavoidable delays" clause and its relationship to this litigation. For the foregoing reasons, we respectfully request 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

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 June 17, 2005 Attorneys for Defendant

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Case 1:01-cv-00116-FMA

Document 178

Filed 06/17/2005

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CERTIFICATE OF FILING I hereby certify that on this 17th day of June, 2005, a copy of foregoing "DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME TO FILE BRIEFING RELATING TO THE `UNAVOIDABLE DELAYS' CLAUSE" 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.