Katz-Pueschel v. Merit Systems Protection Board

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3005
DEBORAH KATZ-PUESCHEL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF TRANSPORATION,
Intervenor.
Petition for review of the Merit Systems Protection Board in DC0752811049-C-1.
ON MOTION
Before GAJARSA, FRIEDMAN, and LINN, Circuit Judges.
LINN, Circuit Judge.
ORDER
Deborah Katz-Pueschel moves without opposition to vacate the final decision of
the Merit Systems Protection Board in Katz-Pueschel v. Department of Transportation
No. DC0752811049-C-1 and to remand for further proceedings.
In 2008, Katz-Pueschel petitioned for enforcement of a 1983 Board decision,
which had reversed her removal. The administrative judge issued an order to show
cause why her petition for enforcement should not be dismissed as untimely, citing 5
C.F.C. § 1201.182(a), which now sets a 30-day time limit for filing a petition for
enforcement of a final Board order when the agency has provided notice of its
compliance. Katz-Pueschel responded to the order. The agency also responded,
asserting that the petition for enforcement should be dismissed due to laches because
the delay in filing prejudiced the agency. The administrative judge dismissed the
petition as untimely and as barred by laches. The Board denied Katz-Pueschel's
petition for review and she petitioned this court for review of the Board's final decision.
In its brief filed with this court, the Board confesses error in its dismissal of Katz-
Pueschel's petition for enforcement and requests that the court vacate the Board's final
decision and remand for further adjudication. Specifically, the Board concedes that the
Board's regulation concerning the time to petition for enforcement did not contain a time
limit when it issued its previous decision in Katz-Pueschel's case. The Board also
concedes that because the agency did not submit a declaration or any other evidence to
support its assertion that it was prejudiced by any delay in the filing of the petition for
enforcement, and because the burden to establish prejudice rests with the agency, it
was error to find that laches barred the petition for enforcement. The agency has also
indicated that it also does not oppose the motion to vacate and remand.
Accordingly,
IT IS ORDERED THAT:
The motion is granted. The Board's decision is vacated and the case is
remanded for further proceedings.
FOR THE COURT
MAY -5 2009
/s/ Jan Horbaly
Date Jan Horbaly
Clerk U.S. :wq
THE f
-2- MAY -5 2009
el MI
cc: George M. Chuzi, Esq.
Stephanie Conley, Esq.
Elizabeth A. Holt, Esq.
s20
MAY -5 2009
ISSUED AS A MANDATE:
-3-