Case No.

09-50953

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THE ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, INC.,

Plaintiff-Appellant
v.

THE TEXAS MEDICAL BOARD, (TMB); ROBERTA M. KALAFUT, Individually and in her
Official Capacity; LAWRENCE L. ANDERSON, Individually and in his Official Capacity;
MICHAEL ARAMBULA, Individually and in his Official Capacity; JULIE K. ATTEBURY,
Individually and in her Official Capacity; JOSE BENAVIDES, Individually and in his Official
Capacity; PATRICIA S. BLACKWELL, Individually and in her Official Capacity; MELINDA
S. FREDRICKS, Individually and in her Official Capacity; MANUEL G. GUARJARDO,
Individually and in his Official Capacity; AMANULLAH KHAN, Individually and in his
Official Capacity; MELINDA McMICHAEL, Individually and in her Official Capacity;
MARGARET McNEESE, Individually and in her Official Capacity; CHARLES E. OSWALT,
Individually and in his Official Capacity; LARRY PRICE, Individually and in his Official
Capacity; ANNETTE P. RAGGETTE, Individually and in her Official Capacity; PAULETTE
BARKER SOUTHARD, Individually and in her Official Capacity; TIMOTHY J. TURNER,
Individually and in his Official Capacity; TIMOTHY WEBB, Individually and in his Official
Capacity; IRVIN E. ZEITLER, Individually and in his Official Capacity; DONALD PATRICK,
Individually and in his Official Capacity; JOHN DOES 1-10 Who are Working for the TMB,
Individually and in their Official Capacities,

Defendants-Appellees

On Appeal from the United States District Court

for the Western District of Texas, Austin Division
(Hon. Lee Yeakel, District Judge)

REPLY BRIEF OF APPELLANT

Andrew L. Schlafly Karen Tripp

939 Old Chester Rd. PO Box 1301
Far Hills, NJ 07931 Houston, TX 77251
908-719-8608 (voice) 713-658-9323 (voice)
908-934-9207 (fax) 713-658-9410 (fax)

ATTORNEYS FOR APPELLANT

 TABLE OF CONTENTS

Table of Contents .................................................................................................... i

Table of Authorities ............................................................................................... ii

Preliminary Statement .............................................................................................1

Argument ................................................................................................................2

I. There Is Standing to Enjoin Defendants’ Constitutional Violations. ...............3

II. Defendants Do Not Adequately Distinguish the Third and Seventh

Circuit Precedents on This Issue, and This Court Should Avoid Creating
a Circuit Split. .................................................................................................. 11

III. Defendants Fail To Justify the Withholding of Discovery that

Would Have Enabled Plaintiff To Remove any Doubts about its Ability
To Prove its Claims.......................................................................................... 13

Conclusion ............................................................................................................ 15

Certificate of Compliance ..................................................................................... 16

Certificate of Service ............................................................................................ 17

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 TABLE OF AUTHORITIES

CASES

Cornerstone Christian Schs. v. Univ. Interscholastic League, 563 F.3d 127

(5th Cir. 2009) ............................................................................................ 12

Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) ....................................7

Friends for Am. Free Enter. Ass’n v. Wal-Mart Stores, Inc., 284 F.3d 575
(5th Cir. 2002) ........................................................................................... 5,7

Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826
(5th Cir. 1997) ...............................................................................................4

Freeman v. United States, 556 F.3d 326 (5th Cir. 2009), cert. denied, 130
S. Ct. 154 (2009)......................................................................................... 14

Ga. Cemetery Ass’n v. Cox, 353 F.3d 1319 (11th Cir. 2003) ...................................8

Harris v. McRae, 448 U.S. 297 (1980) ................................................................. 12

Hospital Council of Western Pennsylvania v. City of Pittsburgh,

949 F.2d 83 (3d Cir. 1991) ......................................................................... 11

Hunt v. Washington State Apple Advertising Comm’n,

432 U.S. 333 (1977) ................................................................... 4,9,10,11,13

International Union, United Automobile, Aerospace, & Agricultural

Implement Workers of America v. Brock, 477 U.S. 274 (1986) .....................7

Kansas Health Care Ass’n v. Kansas Department of Social &

Rehabilitation Services, 958 F.2d 1018 (10th Cir. 1992) .............................. 12

Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir.
2000) .......................................................................................................... 14

Moran v. Kingdom of Saudi Arabia, 27 F.3d 169 (5th Cir. 1994) ........................... 14

ii
Pennell v. City of San Jose, 485 U.S. 1 (1988) ...................................................... 11

Rent Stabilization Ass’n v. Dinkins, 5 F.3d 591 (2d Cir. 1993) ...............................9

Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584

(7th Cir. 1993) ........................................................................................ 12,13

Texans United for a Safe Economy Education Fund v. Crown Central

Petroleum Corp., 207 F.3d 789 (5th Cir. 2000) ..............................................4

United Food & Commercial Workers Union Local 751 v. Brown Group,
517 U.S. 544 (1996) .................................................................................... 10

Warth v. Seldin, 422 U.S. 490 (1975)................................................................. 9,11

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 PRELIMINARY STATEMENT

An association has standing to enjoin violations of the constitutional rights

of its members. The Third Circuit, speaking through now-Justice Samuel Alito,

held that such standing exists. The Seventh Circuit likewise held that such

standing exists. The decision below, by its own admission, declared this to be an

issue of first impression in this Circuit but then adopted a position that directly

conflicts with both the Third and Seventh Circuits. Defendants urge this Court to

reject the other Circuits to affirm the decision below. The effect would be to allow

Defendants to continue to violate constitutional rights of good physicians.

This Court should not create an unnecessary Circuit split over this issue. An

association does have standing to seek injunctive relief to stop ongoing

constitutional violations by a State disciplinary board – the Texas Medical Board

(TMB) – and the decision below to the contrary should be reversed.

Plaintiff The Association of American Physicians & Surgeons, Inc.

(“AAPS”) presented allegations and evidence of an overwhelming pattern of

constitutional violations by Defendants, which causes harm to Texan physicians

and their patients. Plaintiff AAPS identified an unconstitutional pattern of

complaints and harassment against nearly every physician practicing in

competition with then-TMB-President Roberta Kalafut. Record Excerpt (“RE”)

Tab 2 at 46-47 (Compl. ¶¶ 33-37), RE Tab 3 at 63 (“I am the only doctor left in a

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150 mile radius that is involved in Pain Management [Kalafut’s specialty] in any

form or fashion that has not been sanctioned by TMB one way or another, but God

knows she [Kalafut] has been trying.”). This unconstitutional retaliation against

good physicians injures AAPS members and harms the general public, and an

association of physicians is the appropriate party to sue to stop it.

Yet the decision below held that AAPS lacks standing to stop this ongoing

constitutional violation of the Equal Protection Clause by the Defendants. This

Court should reject Defendants’ arguments and reverse the decision below.

ARGUMENT

In their opposition brief, Defendants discuss everything except the pattern of

nearly 20 anonymous or confidential complaints against Kalafut’s competitors.

Instead, Defendants’ brief invents a new standard to dodge accountability for

misconduct by the Texas Medical Board (TMB): “AAPS cannot show that the

participation of each affected member will not be required in connection with the

litigation of its claims.” (TMB Br. at 32). But AAPS will be able to make such a

showing, and make it easily, once Defendants produce the fewer-than-100-pages of

evidence of complaint-manipulation. Defendants cannot have it both ways,

withholding the key evidence while also claiming that AAPS has not proven its

claims. Moreover, Plaintiff AAPS need not prove that it has standing on each and

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every claim in its Complaint in order for the litigation to proceed; standing on

merely one claim suffices for that claim to proceed.

The TMB’s violation of the constitutional rights of AAPS’s members will be

proven largely by reference to TMB’s own actions, rather than through specific

details regarding the illustrative examples in AAPS’s Complaint. AAPS has

persuasively alleged that a pattern of complaints were filed against the competitors

of the President of the TMB, Kalafut, and production of those complaints would

demonstrate or substantiate AAPS’s claims, including violation of the Equal

Protection Clause with respect to her competitors and potential competitors.

I. There Is Standing to Enjoin Defendants’ Constitutional Violations.

Physicians who practiced medicine in competition with Defendant Kalafut

were subjected to devastating investigations and otherwise harassed by the TMB,

for her competitive benefit. Documents in the possession of the Defendant TMB,

totaling fewer than 100 pages in quantity, would almost certainly reveal a pattern

of constitutional violations by Defendants for the benefit of Defendant Kalafut and

to the great detriment of her competitors and their patients. Yet Defendants sought

dismissal of this case without producing this telltale evidence.

No testimony by any victims is required to prove a pattern of

unconstitutional targeting and harassment of Kalafut’s competitors. Crimes are

often proven without hearing testimony from the victims, who may not even be

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alive or otherwise available at a trial. With the lower burden of proof for a civil

case such as this one, and the nature of the Equal Protection Clause and how

violations of it may be shown, Plaintiff AAPS could easily prove how Defendants

engaged in unconstitutional conduct once the complaint-related documents are

produced, under strict confidentiality if necessary, in discovery.

The TMB obfuscates the issues in arguing that AAPS cannot meet the third

prong of the Hunt test for associational standing, based on facts provided by AAPS

to meet the first prong of the Court’s test.1 That is, the TMB mis-focuses the

Court by emphasizing the specific abuses complained of by AAPS in the

Complaint, which it provided for illustrative purposes, when AAPS is not seeking

damages for those specific abuses. Rather, AAPS seeks injunctive and declaratory

relief to prevent the TMB from using anonymous complaints against AAPS

members and from retaliating against AAPS members for critical speech. This

1 This Court has stated the test for associational standing as follows:

An association has standing to bring a suit on behalf of its members when:

(1) its members would otherwise have standing to sue in their own right; (2)
the interests it seeks to protect are germane to the organization’s purpose;
and (3) neither the claim asserted nor the relief requested requires the
participation of individual members.

Texans United for a Safe Economy Education Fund v. Crown Central Petroleum
Corp., 207 F.3d 789, 792 (5th Cir. 2000) (citing Hunt v. Washington State Apple
Advertising Comm’n, 432 U.S. 333, 343 (1967); Friends of the Earth, Inc. v.
Chevron Chemical Co., 129 F.3d 826, 827-828 (5th Cir. 1997).

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relief does not require “individualized proof” that the TMB’s use of such

anonymous complaints and retaliatory behavior violates constitutional rights of

AAPS members.

In support of its position, the TMB cites cases such as Friends for Am. Free

Enter. Ass’n v. Wal-Mart Stores, Inc., 284 F.3d 575 (5th Cir. 2002), instead of

addressing or attempting to distinguish the authority cited by AAPS. (TMB Br. at

33-34). But Friends for Am. Free Enter. Ass’n is concerned with claims of tortious

interference by the defendant Wal-Mart Stores with specific contracts between

various members of the alleged plaintiff association and manufacturers. This

Court found that the participation of the individual association members in Friends

prevented the association from having standing because the individual members of

the association had to participate to: (1) enable the court to resolve the basic choice

of law question; (2) allow the defendant to ascertain sufficient knowledge about

the contracts to prepare a defense; and (3) to enable the court to determine the

proper scope of injunctive relief. See id. at 577.

The TMB attempts to liken the contracts in Friends for Am. Free Enter.

Ass’n to the anonymous complaints at issue here. But unlike the defendant in

Friends for Am. Free Enter. Ass’n, TMB is well aware of and has possession of the

improper complaints here. Moreover, unlike the plaintiff in Friends for Am. Free

Enter. Ass’n, AAPS is not seeking specific relief for specific association members

5
who were the target of the anonymous complaints. Rather, AAPS is seeking to

obtain general relief against the TMB for its pattern of abusive behavior toward the

association members.

The TMB misleadingly recites that AAPS provides a “sole example of

alleged abuse of anonymous complaints,” in an attempt to support their argument

of individual participation needed for fact-specific issues. (TMB Br. at 16). Yet

Defendants fail to address the nearly 20 complaints pursued against the

competitors of Defendant Kalafut that are in issue, and evidence about which the

TMB withheld below. (AAPS Br. at 24-25).

The TMB argues at length about discovery from specific member physicians

that TMB would allegedly need for its defense of alleged abuse of anonymous

complaints (TMB Br. at 17-18), while the very fact of the existence of nearly 20

spurious complaints against the competitors of the TMB President is res ipsa

loquitur evidence of abuse. Doctors fear practicing within a hundred miles of the

TMB President Kalafat and her physician spouse if in competition with them.

TMB should not be heard to argue it needs discovery from AAPS’s

individual members, when the TMB itself holds the most relevant and condemning

evidence in this case. As if in a game of cat and mouse, the member-specific

discovery that the TMB contends it would need for its defense essentially amounts

to discovery as to whether AAPS can prove its case without the TMB’s

6
cooperation in yielding discovery. TMB’s alleged need for member testimony

concerning an allegation of anonymous complaint abuse, while withholding nearly

20 anonymous complaints against TMB President Kalafut’s competitors, is but one

example. Another example relates to TMB’s arguments for AAPS member

testimony relating to TMB President Miller’s conflict of interests. (TMB Br. at 20-

23). Such evidence is in the possession of the TMB rather than AAPS.

As in Friends for Am. Free Enter. Ass’n, this lawsuit does present nearly

pure issues of law. Where, as here, fewer than 100 pages would prove a claim of a

constitutional violation, the issue presented comes as close to a pure question of

law as one will find in almost any lawsuit. Accordingly, the allegations in this case

fully satisfy the standard set forth in Friends for Am. Enter. Ass’n, which

Defendants themselves urge this Court to adopt. (TMB Br. at 11, 13, 17, 33, 34).

See also Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am.

v. Brock, 477 U.S. 274, 287 (1986) (holding that a union had standing because

neither the “claims nor the relief sought required the District Court to consider the

individual circumstances of any aggrieved UAW member” since “[t]he suit raises a

pure question of law”).

Defendants do concede that this Court has ruled in favor of organizational

standing in an applicable precedent, but relegate it to a mere footnote. (TMB Br. at

28 n. 8) (citing Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980)).

7
Defendants attempt to distinguish this favorable ruling on the grounds that a statute

was at issue. That is a distinction without a difference. Defendants here purport to

be withholding complaints pursuant to a statute, and cloaked their actions with the

authority of the state in manipulating those complaints for the competitive

advantage of their President. The injury caused by such wrongdoing by

Defendants is every bit as compelling for standing as the allegations in Briscoe

were, and standing should be found here as well.

Defendants misplace reliance on Ga. Cemetery Ass’n v. Cox, 353 F.3d 1319

(11th Cir. 2003). The Eleventh Circuit discusses standing there only as an

alternative ground for dismissing a meritless case. Standing was lacking in Cox

because it depended on assessing the taking of individualized property, having an

economic impact that was necessarily different for every individual:

The defendant thus properly argues that the Association cannot make the
showing necessary for either standing or a successful facial challenge
without the participation of its members because the economic impact of
these provisions will vary depending upon the economic circumstances of
each of its members. For that reason, the district court did not err by
granting judgment on the pleadings in favor of the Secretary on Georgia
Cemetery’s Takings Clause claim.

Id. at 1322, 1323 (emphasis added). AAPS’s claims and relief sought are not

brought under a “Takings Clause” and are not based on a specific economic impact

on its particular members, and participation by all of AAPS’ members will not be

necessary in establishing AAPS’ claims or desired relief here.

8
 The same defect renders Defendants’ other precedent inapplicable here. See

Rent Stabilization Ass’n v. Dinkins, 5 F.3d 591 (2d Cir. 1993). It also relied on a

Takings claim, which triggers individualized damages lacking in this case at bar.

The Second Circuit said:

The RSA claims that some of its members have been the victims of a taking.
But as the Supreme Court has stated, due to “the ‘essentially ad hoc, factual
inquiry’ involved in the takings analysis, [citation omitted], we have found it
particularly important in takings cases to adhere to our admonition that the
constitutionality of statutes ought not be decided except in an actual factual
setting.’” [citations omitted] . . . to determine when a taking has occurred, .
. . we would have to engage in an ad hoc factual inquiry for each landlord
who alleges that he has suffered a taking. . . .

Id. at 596.

The U.S. Supreme Court has been clear in limiting the reach of the third

prong of the Hunt test to deny associational standing:

[S]o long as the nature of the claim and the relief sought does not make the
individual participation of each injured party indispensable to proper
resolution of the cause, the association may be an appropriate representative
of its members, entitled to invoke the court’s jurisdiction.

Warth v. Seldin, 422 U.S. 490, 511 (1975) (emphasis added).

The participation of aggrieved individuals is not “indispensable” here to

obtain an order directing Defendants to stop their constitutional violations. Indeed,

fewer than a mere 100 pages of complaint-related information in the possession of

Defendants (and already requested by Plaintiff) would likely suffice to prove

constitutional violations whether the individuals victimized by those complaints

9
participate or not, or are even still living or not. This action does not seek any

monetary relief that might make individual participation “indispensable” to the

case, and the third prong of the Hunt test does not justify denying injunctive relief

to an association that merely seeks declaratory relief on behalf of its members.

The Hunt test is prudential. “Unlike the first two prongs of the Hunt test, the

third prong is judicially created and based on prudential considerations.” United

Food & Commercial Workers Union Local 751 v. Brown Group, 517 U.S. 544,

558 (1996). The Supreme Court noted that it “is best seen as focusing on matters

of administrative convenience and efficiency, not on elements of a case or

controversy within the meaning of the Constitution.” Id. at 557. When fewer than

100 pages of smoking-gun evidence can efficiently expose constitutional violations

that are affecting thousands of physicians and millions of patients, the

considerations of “administrative convenience and efficiency” militate in favor of

resolving these issues in a lawsuit brought by an association rather than by

individuals. The unconstitutional pattern of Defendants’ targeting the competitors

of the President of the TMB is best addressed in a lawsuit brought by an

association, rather than by individuals unable to see the pattern. The prudential

basis of the third prong of Hunt resolves in favor of Plaintiff.

10
 II. Defendants Do Not Adequately Distinguish the Third and Seventh
Circuit Precedents on This Issue, and This Court Should Avoid
Creating a Circuit Split.

Defendants devote less than two pages to discussing the conflict that its

arguments would create with precedents of the Third and Seventh Circuits. (TMB

Br. at 30-32). This Court should apply the reasoning of these Circuits and reverse

the decision below, rather than create an unnecessary Circuit split.

Justice Samuel Alito, when he was on the Third Circuit, directly rejected the

argument that the likely participation of an aggrieved individual in a lawsuit

provided the basis for denying standing to the association under Hunt’s third

prong. Hospital Council of Western Pennsylvania v. City of Pittsburgh, 949 F.2d

83, 89-90 (3d Cir. 1991) (Alito, J.) (quoting Pennell v. City of San Jose, 485 U.S.

1, 7 (1988), which quotes Warth v. Seldin, 422 U.S. at 501). Then-Judge Alito

held that when there is anticipated participation by some, but not all, of an

association’s members, standing exists for the association even if member

testimony would be required. See 949 F.2d at 89-90.

The Seventh Circuit held likewise, stating expressly, “We believe that the

approach of the 3d Circuit is a sound one. We can discern no indication in Warth,

Hunt or Brock that the Supreme Court intended to limit representational standing

to cases in which it would not be necessary to take any evidence from individual

11
members of an association.” Retired Chicago Police Ass’n v. City of Chicago 7

F.3d 584, 601-02 (7th Cir. 1993).

This action at bar concerns “government practices” just as the Third Circuit

precedent of Hospital Council did. In contrast, many of the cases invoked by

Defendants were not merely challenges to enjoin government wrongdoing. See,

e.g., Kansas Health Kansas Health Care Ass’n v. Kansas Department of Social &

Rehabilitation Services, 958 F.2d 1018, 1022-23 (10th Cir. 1992) (unlike here, the

claim there was for monetary relief, requiring scrutinizing specific health care

providers that were not parties to the action); see also Cornerstone Christian Schs.

v. Univ. Interscholastic League, 563 F.3d 127, 134 (5th Cir. 2009) (unlike here, the

association there sought standing on a claim brought under the Free Exercise of

Religion clause, which requires individual participation, “‘[s]ince it is necessary in

a free exercise case for one to show the coercive effect of the enactment as it

operates against him in the practice of his religion’”) (quoting Harris v. McRae,

448 U.S. 297 (1980)). In lawsuits against government practices, as here, individual

participation may be helpful but does not disqualify an association from standing

under the third prong of the Hunt test.

In reasoning applicable here – and not distinguished by the court below – the

Retired Chicago Police court held that there was:

no indication in Warth, Hunt, or Brock, that the Supreme Court intended to

limit representational standing to cases in which it would not be necessary to
12
 take any evidence from individual members of an association.

7 F.3d at 601-02. Such a stringent limitation on representational standing would be

inconsistent with the Supreme Court’s assessment in Brock of the efficiencies of

the use of representational standing, for both the litigant and the judicial system.

Rather, the Retired Chicago Police court concluded that the third prong of Hunt:

is more plausibly read as dealing with situations in which it is necessary to

establish ‘individualized proof,’ 432 U.S. at 344, for litigants not before the
court in order to support the cause of action.

Id. at 602. No such situation exists here to justify a denial of standing.

The best Defendants can do with these precedents is to say that “the Court is

not bound by these opinions.” (TMB Br. at 31). But needless splits in Circuit

authority are worth avoiding, particularly when it would encourage more

wrongdoing by the Texas Medical Board.

III. Defendants Fail To Justify the Withholding of Discovery that

Would Have Enabled Plaintiff To Remove any Doubts about its
Ability To Prove its Claims.

AAPS pointed out in its opening brief how Defendants deprived it of the

information contained in fewer than 100 pages of complaint-related information,

which “would likely have provided key evidence in support of standing, because it

could have proven AAPS’s claims without any individualized participation.”

(AAPS Br. at 24-25). The court below did not explain its denial of AAPS’s motion

13
to compel production, which had been pending for many months when the court

dismissed the action. AAPS emphasized a controlling precedent both in the court

below and on this appeal which establishes a right to discovery in resolving a Rule

12(b)(1). (AAPS Br. at 25, citing Moran v. Kingdom of Saudi Arabia, 27 F.3d

169, 172-73 (5th Cir. 1994)).

Defendants did not even cite this controlling precedent, let alone distinguish

it. Indeed, AAPS satisfies the standard upon which Defendants did rely: “The

party seeking discovery typically meets this burden by alleging the ‘specific facts

crucial to [the jurisdictional issue] which demonstrate[] a need for discovery.’”

(TMB Br. at 36, quoting Freeman v. United States, 556 F.3d 326, 342 (5th Cir.

2009), cert. denied, 130 S. Ct. 154 (2009), which quotes Kelly v. Syria Shell

Petroleum Dev. B.V., 213 F.3d 841, 852 (5th Cir. 2000)). AAPS did describe the

“specific facts crucial to” the jurisdictional issue: nearly 20 physicians in Kalafut’s

region were slapped with complaints in order to protect Kalafut’s practice against

competition. This could not plausibly have occurred by chance alone. Most likely

the same person filed many of those complaints, and that person was likely Kalafut

or someone acting on her behalf. No testimony or participation by any of AAPS’s

members is needed to prove the abuse of process and violation of the Equal

Protection Clause in the orchestration of those investigations for the benefit of

Kalafut.

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 CONCLUSION

This Court should reverse the decision below and remand this matter for

further proceedings.

Respectfully Submitted,

s/ Andrew L. Schlafly

Andrew L. Schlafly
Attorney for Appellant
939 Old Chester Rd.
Far Hills, NJ 07931
aschlafly@aol.com
908-719-8608
908-934-9207 (fax)

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 CERTIFICATE OF COMPLIANCE

I hereby certify that compliance with type-volume limitation, typeface

requirements, and type style requirements pursuant to Fed. R. App. P. 32(a)(7)(C):

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:

this brief contains 3,557 words, excluding the parts of the brief exempted by
Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) and Eighth Cir. R.
28A(c) because:

this brief has been prepared in a proportionally spaced typeface using

Microsoft Office Word 2007 in 14-point Times New Roman font.

s/ Andrew L. Schlafly
May 10, 2010

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 CERTIFICATE OF SERVICE

I hereby certify that on May 10, 2010, I electronically filed the foregoing Reply

Brief of Appellant with the Clerk of the Court for the United States Court of

Appeals for the Fifth Circuit by using the CM/ECF system. I certify that all

participants in the case are registered CM/ECF users and that service will be

accomplished by the CM/ECF system.

s/ Andrew L. Schlafly
May 10, 2010

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