Opinion
No. 06-55604.
Argued and Submitted November 9, 2007.
Filed November 27, 2007.
Lloyd Edward Tooks, Esq., Law Offices of Lloyd E. Tooks, San Diego, CA, for Plaintiff-Appellant.
Beth L. Levine, Esq., Office of the U.S. Attorney, San Diego, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. CR-05-00167-LAB.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The facts of this case are known to the parties.
Unlike Boyd v. U.S. Postal Service, 752 F.2d 410 (9th Cir. 1985), the DEA litigated Burnett's claim for roughly seven years to a decision on the merits before the agency, and failed to affirmatively set forth statute of limitations as a defense in its first responsive pleading before the district court as required by Fed.R.Civ.P. 8(c). As a result, we conclude that the Government waived its timeliness objection.