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10/14/80 Louis H. Aikens, v. U.S. Postal Service Board

October 14, 1980

LOUIS H. AIKENS, APPELLANT

v.

U.S. POSTAL SERVICE BOARD OF GOVERNORS, ET. AL. PETITION FOR REHEARING DENIED NOVEMBER 20, 1980



Before: WILKEY, WALD AND EDWARDS, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1980.CDC.246

ORDER

Upon consideration of the motions of both the appellant and the appellees to further extend the time within which to file petitions for rehearing and/or to suggest rehearing en banc, it is

ORDERED, by the Court, that the motions of both the appellant and the appellees are granted and the time within which parties may petition for rehearing and/or suggest rehearing en banc is granted to, and including, October 23, 1980.

PER CURIAM DECISION

Dissenting opinion filed by Circuit Judge EDWARDS.

MINORITY OPINION

EDWARDS, Circuit Judge, dissenting: A majority of the panel in this case has voted to grant the appellee, the U.S. Postal Service, two extensions of time in which to file a petition for rehearing and a suggestion for rehearing en banc. Because I find these actions unjustified, I dissent from the orders granting the requested extensions.

I recognize that it is not commonplace for a member of this court to issue an opinion in response to a request for an extension of time. Nevertheless, because I believe that the instant case presents such an egregious example of a misuse of the judicial process, I am constrained to set forth my views. I am also concerned that, by granting extensions of the sort here considered, the court may inadvertently encourage future misuses of the judicial process.

In order to explain my position, it is necessary to set out in detail the sequence of events in this case. The majority opinion, reversing the District Court and remanding the case for further proceedings, was issued on July 31, 1980. Judge Wilkey, concurring in part and dissenting in part, issued a separate opinion on September 9, 1980.1

On August 14, 1980, the appellee filed two motions. The first was for leave from this court to file a motion for an extension of time. This first motion was necessary because, as it acknowledged, the Postal Service failed to comply with the "ten-day rule."2 The second motion filed on August 14 was for a thirty day extension of time in which to file a petition for rehearing and a suggestion for rehearing en banc. A majority of the panel granted both of these motions on August 18, 1980, and gave the Postal Service until fourteen days after the dissenting opinion was filed (i.e. until September 23) to file its petition and suggestion.

The Postal Service indicated that it failed to make a timely request for an extension "because of vacation schedules and because the delay caused by the need for coordination between the Department of Justice, the United States Attorney, and the United States Postal Service." The Postal Service also indicated that the extension of time was needed for consultation among the appropriate counsel at the Department of Justice, the Postal Service, and the U.S. Attorney's office to determine whether a petition and suggestion should be filed.

On September 22, 1980, one day before the Postal Service's petition and suggestion were due, the Postal Service again requested an extension of time to file the petition and suggestion for rehearing, this time until October 20. The reason given for this second extension was to "conclude" consultation with the U.S. Attorney and the Department of Justice on whether a petition should be filed.

On September 23, 1980, the appellant, who was successful in his appeal to this court, also filed for, and was granted, a thirty day extension of time in which to file a petition for ...


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