Free Motion for Reconsideration - District Court of Federal Claims - federal

Case 1:01-cv-00551-BAF

Document 122

Filed 12/30/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS PSEG NUCLEAR L.L.C., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 01-551C (Judge Sypolt)

DEFENDANT'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S DECEMBER 27, 2004 ORDER Defendant, the United States, respectfully requests that the Court reconsider, in part, its order dated December 27, 2004, regarding defendant's request for an enlargement of time to respond to plaintiff's response to the Court's October 14, 2004 show cause order. In its December 15, 2004 request for an enlargement of time, the Government had sought an enlargement through January 14, 2005, to file that response, although the plaintiff in this case had opposed an enlargement beyond December 23, 2004. In its December 27, 2004 order, the Court granted the Government's motion for an enlargement in part, allowing the Government until January 4, 2005, to file its response to plaintiff's filing. However, for the reasons identified below, we respectfully request that the Court reconsider that order, in part, and grant the Government until at least Monday, January 10, 2005, within which to file its response. We have consulted with counsel for plaintiff, Alex D. Tomaszczuk, who has represented that plaintiff does not have a position with regard to this motion, and will not file any response. Although the Court granted the Government until January 4, 2005, to file its response, the attorney who is primarily responsible for this matter, Harold D. Lester, Jr., is out of the country and is not scheduled to return to the office until January 6, 2005. Because of the complexity and

Case 1:01-cv-00551-BAF

Document 122

Filed 12/30/2004

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nature of the issues raised by the Court's October 14, 2004 order, it will be extremely difficult to respond to the plaintiff's submission without that attorney's continued involvement. Further, although we acquiesced to counsel for plaintiff's initial request that we not include in our original motion for an enlargement of time one of the reasons for the motion, we cannot be prejudiced by plaintiff's opposition to our enlargement motion that was necessitated, in part, by prior requests of counsel for plaintiffs. Specifically, one of the matters that required counsel for the Government's attention and that precluded counsel from focusing completely upon its response in this case involved requests of two of the plaintiffs represented by Shaw Pittman that we engage in settlement negotiations with them. Counsel's preparation for those meetings, and the initial meetings themselves, occurred during December 2004, and, in fact, the initial meetings were held on December 16 and 17, 2004. The timing of those meetings was based upon Shaw Pittman's insistence that the meetings take place before the end of the year. The Government's acquiescence to the requests of Shaw Pittman that we expend significant time and energy in investigating and pursuing settlement negotiations with them, followed by their opposition to the Government's motion for additional time to file its response here necessitated in part by their clients' other requests, should not be allowed to prejudice the Government here. Nevertheless, the most pressing issue relating to the Government's responsive filing relates to the absence from the office of the attorney mainly responsible for this matter. To allow him to return to the office to finalize and ensure receipt of the appropriate approvals for submission of that response, we respectfully request that the Court reconsider its December 27, 2004 order and allow the Government until Monday, January 10, 2005, to submit that response.

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Case 1:01-cv-00551-BAF

Document 122

Filed 12/30/2004

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For the foregoing reasons, defendant respectfully requests 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 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

December 30, 2004

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CERTIFICATE OF FILING I hereby certify that on this 30th day of December, 2004, a copy of foregoing "DEFENDANT'S MOTION FOR PARTIAL RECONSIDERATION OF THE COURT'S DECEMBER 27, 2004 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/Harold D. Lester, Jr.