                        NOTE: This order is nonprecedential.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:




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