Interference No. 102,668
record, McMahon's argument that it shows good cause for the
belatedness of the Lindberg affidavit fails because McMahon
has not persuaded us the APJ's reasoning to
the contrary is incorrect. Specifically, the APJ held that
if, as Bicks testified, Lindberg was identified as a potential
witness on November 19, 1992, one week before the November 26,
1992, due date for preliminary motions, McMahon should have
requested an extension of time for filing preliminary motions
pursuant to § 1.645(a) or included in his initial § 1.633(a)
motion a § 1.639(c) request to take Lindberg's testimony in
support thereof. McMahon contends that neither of these
courses of action was appropriate because when the preliminary
motions were due, McMahon did not know "the specific acts the
witness, Mr. Lindberg, would definitely testify to and when
and if such testimony could be obtained" and that insufficient
time existed to obtain a decision on a motion for an extension
of time (Br. at 40).
Assuming for the sake of argument that McMahon is
correct in this regard, we agree with the APJ's conclusion
that McMahon has not satisfactorily explained the three-year
delay in obtaining and filing the Lindberg affidavit
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