NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
MELISSA KENNEDY, AS NEXT FRIEND FOR,
MICHAEL DAN KENNEDY, -
Petition,ers-Appellants,
V.
SECRETARY OF HEATH AND HUMAN SERVICES,
Resp0ndent-Appellee.
2011-5106 .
Appeal from the United States C0urt of Federal
C1aims in case n0. 90-VV-1009, Judge Francis M. A11egra.
ON MOTION
Bef0re SCHALL, Circuit Judge.
0 R D E R
The Secretary of Health and Human Services moves
to dismiss the appellants appeal as untimely The appel-
lants oppose The Secretary replies
Because this court has not yet ruled on the filing re-
quirements ef 42 U.S.C. § 300aa-12(f), we deem the better

KENNEDY V. HHS 2
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
 2 0  /s/ Jan Horbal__\;
Date J an Horbaly
Clerk `
ccc AndreW D. DoWning, Esq. _
M1chael P. M1lmoe, Esq. ga con fm
520 THE FEDERAL ClRCUlT
0CT -2 0 2011
.|ANHORBALY
CLE'\‘K

