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United States Department of Labor Employees Compensation Appeals Board JOHN C. KNIGHT, Appellant and DEPARTMENT OF DEFENSE, DEFENSE FINANCE & ACCOUNTING SERVICE, Denver, CO, Employer))))))))) Appearances:

Knight, Appellant (“App”) appeals from a final order granting Director Michael E. Griffin's (“Griffin”) summary judgment motion. On July 16, 2005, Appellant filed a notice of appeal from a final order granting Director Michael E. Griffin's summary judgment motion. The DOL's brief filed with the Court on July 17, 2005, in support of Appellant's appeal of the July 17, 2005, judgment did not include an opinion by Director Griffin concerning Appellant's motion for summary judgment. On August 28, 2005, Appellant filed an amended motion for summary judgment (“App. Motion”). In this motion, Appellant claims that his summary judgment motion should have been granted because his claims in the DOL's June 15, 2005, motion are entitled to a presumption of validity. For the reasons stated below, such motion should not be entertained. The United States Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court on September 14, 2005, and the case was remanded to the District Court to reexamine the DOL's June 15, 2005, motion and the FAO's July 16, 2005, summary judgment motion. On November 9, 2005, Appellant filed a stipulation and supporting memorandum of law, alleging that his summary judgment motion may now be mooted for the following reasons: (1) FAO's summary judgment motion alleged that it is not necessary for this Court to consider the DOL's June 15, 2005, motion, because “whether the DOL's summary judgment motion was timely filed will be answered at the next stage of the litigation,” and (2) Appellant claims that his summary judgment motion “does not meet the legal standards for a timely motion.” (FAO's Brief in Support of App. At 9-10; App. Motion at 4-5.) The FAO's July 16, 2005, motion, in effect, waived Appellant's opportunity to file a subsequent motion for summary judgment. On November 9, 2005, however, the FAO filed a motion for permission to file a brief. On November 17, 2005, Appellant filed a memorandum in opposition to the FAO's motion and the FAO's brief. (FAO's Reply to App. At 7-8.

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