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

Case 1:01-cv-00116-FMA

Document 177

Filed 06/14/2005

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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 TO AMEND THE COURT'S JUNE 7, 2005 ORDER Pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, defendant, the United States, respectfully requests that the Court amend the scheduling order that it issued on June 7, 2005, to provide defendant with three additional days, to and including June 17, 2005, to file its motion and brief concerning unavoidable delay, and update its briefs on the four outstanding dispositive motions, and to provide corresponding extensions of time for plaintiff's briefs, currently due on July 19, 2005, and defendant's reply brief, currently due August 2, 2005. Counsel for plaintiff, Nebraska Public Power District ("NPPD"), has indicated that NPPD does not oppose this proposed amendment to the Court's June 7, 2005 order. The Government specifically proposes the modification of the Court's order as follows: 1. On or before June 17, 2005, defendant shall file a motion on the "unavoidable delay issue" and a brief, not to exceed 50 pages, in support of that motion and to update its briefs on the four outstanding dispositive motions; On or before July 22, 2005, plaintiff shall file a brief, not to exceed 50 pages, which responds to defendant's motion and updates its briefs on the four outstanding dispositive motions; and On or before August 5, 2005, defendant shall file a reply, not to exceed 25 pages, limited to the "unavoidable delay" issue.

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Case 1:01-cv-00116-FMA

Document 177

Filed 06/14/2005

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The requested enlargement is necessary because of the level of review that the Government's brief must receive, given the issues that it discusses, and because other case commitments of Government counsel have made it impossible for counsel to complete and obtain the necessary review of the Government's briefs. After counsel responsible for preparing the Government's briefs in this case appeared before the United States Court of Appeals for the Federal Circuit in Indiana Michigan Power Company v. United States, No. 04-5122, on June 6, 2005, he was required to turn his attention to several other matters, which have continued to demand his attention, including matters relating to Tennessee Valley Authority v. United States, No. 01-249C (Fed. Cl.), which is scheduled to begin trial on Tuesday, June 21, 2005; substantive briefing in Energy Northwest v. United States, No. 04-0010C (Fed. Cl.), is due on June 17, 2005; significant post-trial briefing in Sacramento Municipal Utility District v. United States, No. 98488C (Fed. Cl.), is due by June 20, 2005; and oral argument in Boston Edison Co. v. United States, No. 99-447C (Fed. Cl.), and Entergy Nuclear Generation Co. v. United States, No. 032626C (Fed. Cl.), upon a motion to consolidate, was held this morning, June 14, 2005. Because of the scope of the activities in which counsel for defendant has been and continues to be required to participate, defendant respectfully requests that the Court grant us an additional enlargement of three days to allow the completion and review of the Government's briefs. We note that this enlargement will not affect the oral argument upon this and other motions, scheduled to take place on September 8, 2005. For the foregoing reasons, defendant respectfully requests that the Court grant defendant's request to amend the Court's June 7, 2005 order, as specified above.

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Case 1:01-cv-00116-FMA

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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 June 14, 2005 Attorneys for Defendant

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Case 1:01-cv-00116-FMA

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CERTIFICATE OF FILING I hereby certify that on this 14th day of June, 2005, a copy of foregoing "DEFENDANT'S UNOPPOSED MOTION TO AMEND THE COURT'S JUNE 7, 2005 ORDER" 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