Kim L. Hamilton v. Merit Systems Protection Board

48 F.3d 1210, 1995 U.S. App. LEXIS 5640, 1995 WL 119568

Opinion

ORDER

On further consideration of the appeal now pending before the court, and because the above appeal raises significant issues related to the dismissal of appeals for untimeliness by the Merit Systems Protection Board, it is

ORDERED that additional briefing by the parties and by amici curiae may be filed as follows:

The principal brief for petitioner shall be filed not later than thirty (30) days from the date of this Order. The principal brief for respondent shall be filed not later than twenty (20) days from the date petitioner’s principal brief is served and filed. Petitioner’s reply brief shall be filed not later than ten (10) days from the date respondent’s principal brief is served and filed.

The court is particularly interested in briefing on:

I. May the Merit Systems Protection Board, sua sponte, raise the issue of the untimeliness of an appeal to the Board taken pursuant to 5 U.S.C. § 7701(a), or is untimeliness an affirmative defense which is waived if not raised by the Agency? Please discuss which party should have the burden of proof regarding the timeliness of the appeal. Please also discuss the legal basis, if any, for the Board’s current practice of raising untimeliness sua sponte, and 5 C.F.R. § 1201.56(a)(2) (1993), which places the burden of proof regarding timeliness on the Appellant.

Amicus curiae briefs may be filed in accordance with Rule 29.