Opinion
2011-5106
10-20-2011
MELISSA KENNEDY, AS NEXT FRIEND FOR, MICHAEL DAN KENNEDY, Petitioners-Appellants, v. SECRETARY OF HEATH AND HUMAN SERVICES, Respondent-Appellee
NOTE: This order is nonprecedential.
Appeal from the United States Court of Federal Claims in case no. 90-VV-1009, Judge Francis M. Allegra.
ON MOTION
Before SCHALL, Circuit Judge.
ORDER
The Secretary of Health and Human Services moves to dismiss the appellants' appeal as untimely. The appellants oppose. The Secretary replies.
Because this court has not yet ruled on the filing requirements of 42 U.S.C. § 300aa-12(f), we deem the better course is to deny the motion without prejudice to the parties discussing the issues related to dismissal in the briefs.
Accordingly,
IT IS ORDERED THAT:
The Secretary's motion to dismiss is denied without prejudice to the parties raising the issues in the briefs. The Secretary should compute his brief due date from the date of filing of this order.
FOR THE COURT
Jan Horbaly
Clerk
cc: Andrew D. Downing, Esq.
Michael P. Milmoe, Esq.
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