Interference No. 102,668
(initially filed on December 22, 1994, with the second request
for reconsideration of the June 2, 1994, decision on final
hearing). The Bicks affidavit described the efforts required
to obtain permission for Lindberg to testify from the Office
of General Counsel of the U.S. Navy, Lindberg's employer.
These efforts were described by the APJ as follows:27
Following Bicks's November 25, 1991, telephone
conversation with Lall [of the General Counsel's
office], during which Lall promised to send Bicks
further information when it became available,
McMahon waited four and one-half months, until May
12, 1992, to send Lall a follow-up letter noting the
lack of any response and making a "formal" written
request for Lindberg's testimony (Ex. A). (It was
during this four and one-half month period that the
undersigned issued papers 15 and 22 deferring
consideration of the first motion to final hearing.)
While McMahon was certainly entitled to wait awhile
for an answer, four and one-half months is too long
to be considered reasonable diligence on McMahon's
part. However, this period of inactivity pales in
comparison to a later period of inactivity lasting
twenty-two months. On May 15, 1991, Lall telephoned
Bicks to request further details, which Bicks
provided in a letter faxed and mailed to Lall on May
18, 1992 (Ex. B). Three months later, on August 18,
1992, McGowan sent Bicks a letter (Ex. C) indicating
that his request was not in compliance with the Navy
regulations (copy enclosed) governing requests to
take testimony of Navy personnel. Between McMahon's
May 18, 1992, letter and McGowan's August 18, 1992,
response, the undersigned considered and granted the
initial motion, concluding that the Jones affidavit
Paper No. 80, at 7-8.27
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