Interference No. 102,755
31 32
(FOIA). In response to Stimson's opposition, which argues
(at 3-4) that the motion and evidence fail to prove dates for
the acts alleged therein, Nedelk filed a reply accompanied by33
new evidence including the deposition testimony by DeYoung
(NR 502-26) concerning his first affidavit and some affidavits
that are not of record: (a) a December 21, 1994, affidavit by
DeYoung; (b) a December 4, 1994, affidavit by Ray Weber; and
(c) a December 21, 1994, affidavit by Arnold Beck. The APJ
held that the reply evidence "is not entitled to
consideration, as it is not directed to new points of argument
raised in the opposition, as required by § 1.638(b). Instead,
it is directed to deficiencies in the motion that were
identified in the opposition." We agree. It is well settled34
that all of the available evidence on which a party intends to
Nedelk's belated XB-70 motion includes a § 1.639(c)31
request for permission to take the testimony of persons having
knowledge of the XB-70 braking system. Although the APJ initially
denied the request on the ground that Nedelk had not demonstrated
that the testimony was unavailable at the time the belated motion
was filed (paper No. 62, at 7-8), he reversed himself on
reconsideration, holding that because the belated § 1.633(a)
motion was filed at the beginning of Nedelk's testimony-in-chief
period, it was reasonable for Nedelk to assume that the requested
testimony need not accompany the motion (paper No. 68, at 7).
Paper No. 49.32
Paper No. 54.33
Paper No. 62, at 10.34
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