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U.S. DEPARTMENT OF LABOR Employees Compensation Appeals Board In the Matter of TAMARA D. MARTINEZ and DEPARTMENT OF VETERANS AFFAIRS, VETERANS ADMINISTRATION HOSPITAL, Fort Lyon, CO Docket No. 00-2721;

S.C. § 7609(n)(2) for payment of a lump sum to a deceased employee who had claimed benefits after she received the last of her pension benefits. Plaintiffs have presented two witnesses, two expert witnesses, and a third party for summary judgment, but have not presented evidence regarding whether the statute of limitations barred her from bringing this claim. Plaintiffs argue that Congress intended to provide for a civil forfeiture process under § 5595 on the one hand, and to preclude judicial reconsideration of claims under § 7609 on the other. Plaintiffs have presented no evidence of Congress s intent to restrict the ability of the courts to take judicial action when it appears that an erroneous ruling on a claim under § 5595 will adversely affect the integrity of a system of benefits and pensions, or will deny employees the benefits they would otherwise derive when they die. Thus, the evidence in this case is not sufficient to support the granting of summary judgment. The district judge's denial of summary judgment would result in irreparable injury to the parties, and in particular to appellant s family. Because I have concluded that summary judgment is improper, I must deny that relief. The district judge has discretion to grant a directed verdict upon a question of law. See N.D. Cent. Code § 17.1A-40(b)(1). I conclude that the grant of summary judgment is improper. In addition, there is no substantial basis, either by direct evidence or upon evidentiary hearings, for the District Court to conclude that the statute of limitations barred plaintiff from bringing this case on the merits. Therefore, I need not address the merits of the case, but I am persuaded that summary judgment is appropriate. I therefore deny the district judge's order denying summary judgment on appeal. I do, however, reserve for another day whether the District Court erred in concluding that the statute of limitations bar plaintiff from bringing this action on the merits. The district judge has discretion to grant partial summary judgment at any time. See N. Dakota Cent. Code § 16-05-11-02 (1998 ed.). The district judge was not obligated to grant summary judgment at this point. It is my duty to conclude that summary judgment is proper, on the merits, and for legal purposes only, in an action which is dismissed for want of prosecution under Federal Rule of Civil Procedure 12(b)(6), and on the facts of any case in which summary judgment is granted.

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