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

Case 1:01-cv-00115-SGB

Document 165

Filed 02/15/2005

Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on February 15, 2005) __________________________________________ ) OMAHA PUBLIC POWER DISTRICT, ) ) Plaintiff, ) ) v. ) No. 01-115C ) (Judge Braden) THE UNITED STATES, ) ) Defendant. ) __________________________________________) PLAINTIFF'S UNOPPOSED MOTION FOR LEAVE TO EXCEED PAGE LIMIT Pursuant to RCFC 5.2(b)(2), Plaintiff Omaha Public Power District ("OPPD"), through its undersigned counsel, respectfully requests leave of the Court to exceed the 20-page limitation in RCFC 5.2(b)(2) for filing its Reply In Support Of Its Cross-Motion For Partial Summary Judgment On The Acceptance Rate, which brief will be filed contemporaneously with this motion. OPPD requests that the page limit be enlarged from 20 to 55 pages. Counsel for Defendant (the "Government") has represented that the Government will not oppose this motion. OPPD requests leave to exceed the page limit to allow OPPD to respond fully to (1) the Government's combined opposition and reply brief on the acceptance rate issue and (2) the Government's more recent supplemental brief on the acceptance rate issue. The Government's combined opposition and reply brief, filed on April 11, 2003, was 81 pages in length, exceeding the requirements of RCFC 5.2(b)(2) by 51 pages. (Its supplemental brief, filed on February 1, 2005, was an additional 26 pages.) Furthermore, the Government's combined opposition and

Case 1:01-cv-00115-SGB

Document 165

Filed 02/15/2005

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reply brief includes responses to various arguments that were never made by OPPD1 in this case and recharacterizations of the Government's previous arguments (not to mention the introduction of new evidence from a 760-page supplemental appendix).2 Thus, to respond fully to the Government's lengthy brief and new arguments (as well as the supplemental brief), OPPD needs to exceed the 20-page limit by 35 pages.

The Government's reply brief responds to various arguments made by other plaintiff utilities in addition to responding to OPPD's arguments. OPPD has done its best to assess these other utilities' arguments (and whether and how to defend them) without the benefit of having copies of all the materials submitted by every other plaintiff utility. OPPD also notes that some of these documents in the Government's appendix appear irrelevant to this case and objects to their use on relevancy and other grounds. For example, in its supplemental appendix, the Government has attached deposition testimony taken by the Government of Messrs. Rudolph Grube and Robert Jordan in damages proceedings in Yankee Atomic Elec. Co. v. United States, No. 98-126C (Merow, S.J.), Maine Yankee Atomic Power Co. v. United States, No. 98-474C (Merow S.J.), and Connecticut Yankee Atomic Power Co. v. United States, No. 98-154C (Merow, S.J.) (the "Yankee cases"). See Defendant's Supplemental Appendix To Defendant's Reply To Plaintiff's Opposition To Defendant's Motion For Partial Summary Judgment Regarding The Rate Of Spent Nuclear Fuel Acceptance And Opposition To Plaintiff's Cross-Motion For Partial Summary Judgment On The Acceptance Rate at 541-49 (Apr. 11, 2003). The Government's reliance on these depositions contradicts the Government's decision not to take depositions in the coordinated discovery proceedings, to which OPPD was a participant. While OPPD used selected deposition transcript excerpts of the Government's witnesses deposed in the Yankee cases' damages proceedings, the Government was given notice of all such depositions, had the opportunity to protect the Government's interests by attending these depositions and, presumably, retains the right to object to the relevance of such depositions to the Yankee cases. No such rights were accorded OPPD with respect to the Grube and Jordan depositions. 2
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Case 1:01-cv-00115-SGB

Document 165

Filed 02/15/2005

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CONCLUSION For the foregoing reasons, OPPD respectfully requests that the Court grant OPPD leave to exceed the page limitation of RCFC 5.2(b)(2) by 35 pages.

Dated: February 15, 2005

Respectfully submitted, s/ Alex D. Tomaszczuk by s/ Jack Y. Chu Alex D. Tomaszczuk SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Omaha Public Power District

Of Counsel: Jay E. Silberg Michael G. Lepre Walter F. Zenner Daniel S. Herzfeld Jack Y. Chu SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax) Stephen Olson Fraser Stryker Mesuey Olson Boyer & Bloch P.C. 500 Energy Plaza 409 South 17th Street Omaha, NE 68102-2663 (402) 978-5235

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