Beruflich Dokumente
Kultur Dokumente
)
VERN McKINLEY, )
)
Plaintiff, )
)
v. ) No. 1:10-cv-00420-EGS
)
FEDERAL DEPOSIT INSURANCE )
CORPORATION )
)
Defendant. )
)
Introduction
Pursuant to the Court’s December 23, 2010 Order (Dkt. 16), and Minute Order of
February 23, 2011, the FDIC filed its Motion for Summary Judgment (Dkt. 20) on the sole
remaining issue in this case: the adequacy of the FDIC’s searches for records responsive to
Plaintiff’s three FOIA requests. Specifically, the Court directed that the FDIC “either conduct
new searches for the records sought by plaintiff or submit declarations that adequately
demonstrate that the agency employed search methods reasonably likely to lead to discovery of
records responsive to the plaintiff’s requests.” Dkt. 16. The FDIC has elected to demonstrate
that its original document searches were reasonable and sufficient under the FOIA, and
accordingly has submitted detailed declarations from Fredrick L. Fisch, the Supervisory Counsel
of the FDIC’s FOIA/Privacy Act Group at the time of Plaintiff’s requests, and Catherine L.
Hammond, who personally conducted the document searches in the FDIC’s Executive Secretary
Section (ESS).
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Mr. Fisch’s declaration includes his point-by-point analysis of the wording of Plaintiff’s
requests, setting out his reasoning in determining the scope of the search. See Nation Magazine
v. Customs Service, 71 F.3d 885, 889 (D.C. Cir. 1995) (“To assess the adequacy of Customs’
search, we must first ascertain the scope of the request itself.”). Ms. Hammond’s declaration sets
out in detail the process she followed in conducting the searches, including the systems searched
As set out below, in opposition to the FDIC’s motion for summary judgment, Plaintiff
has failed to assert that any material facts in this case remain in dispute; has failed to challenge
the reasonableness of Mr. Fisch’s conclusions regarding Plaintiff’s requests that led him to
determine the scope of the searches; and has failed to raise any objection to the conduct of the
searches themselves. In support of his own cross-motion for summary judgment, Plaintiff offers
no additional affidavits or other additional evidence. Rather, Plaintiff’s opposition to the FDIC’s
motion, and his own cross-motion, rest on two facts: the “any information available” language
in his three requests, and a reference (in the documents provided in response to one of the
prevailing FOIA law. Not only does Plaintiff fail to contest that legal authority, he offers little in
Thus, for the reasons discussed below, the FDIC’s motion for summary judgment should
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Argument
As this Court recently stated: “Any factual assertions contained in affidavits and other
attachments in support of motions for summary judgment are accepted as true unless the
assertions.” Wilson v. Dep’t of Transportation, 730 F. Supp. 2d 140, 148 (D.D.C. 2010).
Plaintiff does not object to any of the FDIC’s statements of material fact, either in his
memorandum of law,1 or in his response to the FDIC’s Statement of Material Facts Not In
Dispute. The FDIC’s statements of fact are supported by one or both of the declarations
submitted by the FDIC in support of its motion for summary judgment. Plaintiff repeatedly
avers that he “lacks knowledge to confirm or deny” several of the FDIC’s statements of
undisputed fact, but offers no contrary facts in response. See Plaintiff’s Response to Defendant’s
The declaration of Catherine L. Hammond (Dkt. 20-4) describes in detail “what records
were searched, by whom, and through what processes.” Memorandum Opinion at 9 (Dkt. 17)
(citations omitted). Indeed, Plaintiff states that he “does not contest that the declarants have
personal knowledge of Defendant’s search methodology and procedures or that searches were
Fisch (Dkt. 20-2), which sets out step-by-step how Mr. Fisch reviewed the FOIA requests to
1
Plaintiff filed the same memorandum of law in opposition (Dkt. 21) to the FDIC’s motion for summary
judgment and in support of his cross-motion for summary judgment (Dkt. 22).
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Nor does Plaintiff offer any evidence or make any allegation challenging the presumption
of good faith applicable to agency declarations. “This presumption of good faith ‘cannot be
rebutted by purely speculative claims about the existence and discoverability of other
Accordingly, the facts asserted by the FDIC in its Statement of Material Facts Not In
Dispute and in the Fisch and Hammond declarations should be taken as true. Fed. R. Civ. P.
56(e) (if a party fails to properly address another party’s assertion of fact, the court may consider
the fact undisputed for purposes of the motion); LCvR 7(h) (the court may assume that facts
identified by the moving party are admitted if not controverted by the opposing party); Hubbard
v. United States, 545 F. Supp. 2d 1, 4 (D.D.C. 2008) (adverse party’s response must set forth
2. The FDIC Has Met Its Burden Of Demonstrating That It Conducted A Reasonable
Search.
The only remaining issue in this case is whether the facts regarding the document
searches in this case, as set out in the FDIC’s declarations, “demonstrate that the agency
employed search methods reasonably likely to lead to discovery of records responsive to the
Plaintiff does not challenge how the actual records search in the Executive Secretary
Section (ESS) was conducted. Therefore, the issue in this case is whether the FDIC, acting
through Mr. Fisch, reasonably interpreted Plaintiff’s FOIA requests in determining the scope of
the searches.2 Because Mr. Fisch’s interpretation of the wording of Plaintiff’s three FOIA
2
The three requests, together with the referenced press releases, can be found in the Exhibits (Dkt. 20-3)
to the Fisch Declaration and the text of each request is also set out in both the Fisch and Hammond
declarations.
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requests was reasonable -- even if not what was intended by Plaintiff -- it was sufficient for the
standard of reasonableness and depends on the individual circumstances of each case.” Truitt v.
Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990); Wilson v. Dep’t of Transportation, 730 F.
Supp. 2d at 149.
Citing Nation Magazine v. Customs Service, 71 F.3d at 890, Plaintiff argues that the
FDIC “improperly limited its searches to only one system of records even though Defendant
easily could have searched other systems that likely contain additional, requested records.” Pl.
Mem. at 4. Neither Nation Magazine nor the case it cites for this proposition, Oglesby v. Dep’t
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) establishes a minimum number of files that an
agency must search. The operative language, as correctly quoted by Plaintiff, is: “[T]he
agency cannot limit its search to only one record system if there are others that are likely to turn
up the information requested.” Id. (emphasis added). The Oglesby court then continues:
It is not clear from State's affidavit that the Central Records system is the only
possible place that responsive records are likely to be located. At the very least,
State was required to explain in its affidavit that no other record system was likely
to produce responsive documents.
Id. (emphasis added). In this case, Mr. Fisch explains clearly in his declaration what he
interpreted each of the three requests to be asking for -- the Board Minutes and any memoranda
that were before the Board when making their determinations. Fisch Decl. at 3-5, 7-8, 10-11.
Then Mr. Fisch states plainly how that interpretation determined the scope of the searches:
Because the Minutes of meetings of the FDIC Board of Directors are exclusively
prepared and maintained by the ESS, the only reasonable place to search for the
Minutes requested by Plaintiff was the ESS.
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Because the memoranda prepared for and used by the FDIC Board of Directors
that describe, explain, provide the background and reasoning for, and/or
recommend action (commonly known as “Board Cases” or “Case Memoranda”)
are kept and maintained by the ESS as part of the official records of Board
meetings in which such memoranda are used, the only reasonable place to search
for “supporting memos” requested by Plaintiff was the ESS.
Id. (emphasis added). Thus the Fisch Declaration satisfies the requirement set out in Oglesby. A
search in other records systems would be called for only if Mr. Fisch’s interpretation of the
wording of Plaintiff’s requests was unreasonable, or if Mr. Fisch was incorrect about where the
records were located. Plaintiff has offered no evidence to dispute Mr. Fisch’s statements.
Again quoting Nation Magazine, Plaintiff asserts that: “[E]ven if the Court determines
that Plaintiff’s requests did not reasonably include these additional records -- and Plaintiff does
not concede that the requests do not do so -- Defendant nevertheless had ‘a duty to construe [the]
request[s] liberally.” Pl. Mem. at 5. In other words, Plaintiff is arguing that even if Mr. Fisch’s
interpretation of the FOIA requests was reasonable, the FDIC had a duty to disregard that
reasonable interpretation in favor of a more liberal construction of the requests. This is not what
the court in Nation Magazine said, and is not supported in any other case law cited by Plaintiff or
any case found by the FDIC. As Plaintiff notes in his memorandum: “’The adequacy of an
circumstances of the case.’” Pl. Mem. at 3 (citations omitted). And as the court stated in Nation
Magazine, “To be sure, there are some limits on what an agency must do to satisfy its FOIA
The FDIC reasonably interpreted the scope of Plaintiff’s requests to be within certain
parameters, based on the wording of the requests, and within those parameters conducted a
search reasonably likely to lead to discovery of responsive records. Having done so, the FDIC
has met its burden. Larson v. Dep’t of State, 565 F.3d 857, 869 (D.C. Cir. 2009) (“In
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determining whether an agency has discharged its FOIA responsibilities, the issue we must
resolve is whether the search for documents was adequate, ‘and adequacy is measured by the
reasonableness of the effort in light of the specific request.’ Meeropol v. Meese, 790 F.2d 942,
956 (D.C.Cir.1986).”)
Plaintiff’s principal objection to the FDIC’s motion for summary judgment, and primary
support for his own cross-motion for summary judgment, is that his requests asked for “any
information available.” Plaintiff asserts that he did not intend his request to be limited to the
Board minutes and case memoranda. See Pl. Mem. at 4. Plaintiff interprets the wording of his
requests one way, but the FDIC interpreted them another way. For purposes of the FDIC’s
motion for summary judgment, the Court must determine whether the FDIC’s interpretation, as
set out in the Fisch declaration, was reasonable “in light of the specific request[s].” Larson v.
Plaintiff misstates Mr. Fisch’s conclusions regarding the “any information available”
language of the requests. Plaintiff asserts that “for the first time since Plaintiff submitted his
requests more than 17 months ago, Defendant claims . . . that Plaintiff’s requests are ‘overbroad
and failed to reasonably describe the records sought.’” Pl. Mem. at 5. That is not the case.
Rather, the FDIC reference to Plaintiff’s requests as overbroad refers only to the portion of the
request that asks for “any information available,” and indeed, only to the word “any.” Fisch
Decl. at 4, 7, 10 (“[B]ecause that portion of the request failed to comply with subsection
(a)(3)(A) of the FOIA . . . the word ‘any’ should be disregarded in interpreting Plaintiff’s request
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for ‘information available on this determination.’”).3 Mr. Fisch goes on to explain that “the
phrase ‘any information available’ did not render the request defective . . . to the extent that other
information in the request concerning ‘this determination’ satisfied the criteria for ‘identifiable
Rather than finding each request defective in its entirety on the basis of the “any
information available” language, Mr. Fisch examined each request in detail, as set out at length
in his declaration, to determine what records were reasonably described. Fisch Decl. at 3-5, 7-8,
10-11. Plaintiff’s erroneous statement that the FDIC is “asserting for the first time that it does
not understand Plaintiff’s FOIA requests” (Pl. Mem. at 6) reflects Plaintiff’s failure to
acknowledge and address the facts set out in the Fisch Declaration.
Plaintiff also fails to address the totality of Mr. Fisch’s analyses of the three FOIA
requests. As Mr. Fisch’s declaration shows, he concluded from the wording of the requests that
Plaintiff was seeking information about the actions taken by the FDIC Board of Directors at
three specific Board meetings, and was seeking the material that the FDIC Board of Directors
relied upon at those meetings in taking those actions. Plaintiff does not address Mr. Fisch’s
conclusions or argue that those conclusions were unreasonable or incorrect. Plaintiff states that,
“Based on the declarations submitted by Defendant, it is evident that Defendant’s searches were
inadequate.” Pl. Mem. at 4. Yet Plaintiff does not point to any statement in the declarations to
support that “evident” conclusion -- much less offer any contrary evidence. And again, Plaintiff
3
The relevant portion of the FOIA states: “[E]ach agency, upon any request for records which (i)
reasonably describes such records and (ii) is made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed, shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A).
4
FDIC’s FOIA regulation provides: “(c) Defective requests. The FDIC need not accept or process a
request that does not reasonably describe the records requested or that does not otherwise comply with the
requirements of this part. The FDIC may return a defective request, specifying the deficiency. The
requester may submit a corrected request, which will be treated as a new request.” 12 C.F.R. § 309.5(c).
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states, “Based on Mr. Fisch’s declaration it is apparent that Defendant understood which records
Plaintiff was seeking.” Pl. Mem. at 5. Indeed, the FDIC believes that it did understand which
records Plaintiff was seeking, but what is “apparent” from the Fisch Declaration on one hand and
Plaintiff’s memorandum on the other is that Mr. Fisch and Plaintiff did not share the same
understanding. Plaintiff fails to cite to any portions of the Fisch Declaration supporting his
contentions, and again cites no facts to dispute the evidence presented by Mr. Fisch. Plaintiff’s
bare assertions, lacking any evidentiary basis, are insufficient to defeat summary judgment. See
Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (nonmoving party may not rest upon mere
allegations or denials); Schoenman v. FBI, 573 F. Supp. 2d 119, 134 (D.D.C. 2008) (“In
opposing a motion for summary judgment or cross-moving for summary judgment, a FOIA
b. Plaintiff Offers No Legal Support For His Argument That The “Any
Information Available” Language Renders The Scope Of The Search
Inadequate.
Plaintiff has failed to address the substantial case law, set out in the FDIC’s
memorandum, holding that FOIA requests in terms such as “any and all” do not reasonably
describe records sought, as required by FOIA. Plaintiff states that his FOIA requests “seek any
and all information available regarding the October 2008 decision to create the Temporary
Liquidity Guarantee Program, the November 2008 decision to extend assistance to Citigroup,
and the January 2009 decision to extend assistance to Bank of America.” Pl. Mem. at 4
(emphasis added). Though limited to three specific matters, this “any and all” language
nonetheless fails to reasonably describe the records sought “in a way that enables the FDIC’s
staff to identify and produce the records with reasonable effort and without unduly burdening or
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significantly interfering with any of the FDIC’s operations.” 12 C.F.R. § 309.5(b)(3).5 For that
reason, Mr. Fisch -- as he describes in his declaration -- did not stop at “any” but reviewed the
requests further to determine whether there were records that were “reasonably described” and
The “any records available” language echoes the request that this Court considered and
rejected in the recent case of Latham v. DOJ, 658 F. Supp. 2d 155 (D.D.C. 2009), which had just
I am requesting a complete and thorough search of your filing system under your
agency's control, of any records you may have that pertain in any form or sort to
myself. Furthermore, any other retrieval system that you have access to that
list[s] in any form my name or reference to my name, I ask that these documents
as well be included in this request, in their entirety, and as fully as possible.
Id. at 157 (emphasis added). Quoting Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 388 (D.C. Cir.
1996) and Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982), the Court in Latham stated, “A
request reasonably describes records if ‘the agency is able to determine precisely what records
are being requested.’” “Any information available” does not do so, despite Plaintiff’s protest
that “Plaintiff’s requests described exactly records he was seeking.” Pl. Mem. at 4. See also
Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (deficient request sought “any and all
documents, including but not limited to files, that refer or relate in any way to Billy Ray Dale”);
Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (rejecting
request for records of “contact with companies, entities, and/or persons related or doing or
conducting business in any way” with China); Mason v. Callaway, 554 F.2d 129, 131 (4th Cir.
1977) (request for “all correspondence, documents, memoranda, tape recordings, notes, and any
5
The FDIC’s FOIA regulation provides: “A request for identifiable records shall reasonably describe the
records in a way that enables the FDIC’s staff to identify and produce the records with reasonable effort
and without unduly burdening or significantly interfering with any of the FDIC’s operations.” 12 C.F.R.
§ 309.5(b)(3).
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other material” inadequately identified records sought). As the Fourth Circuit stated in Mason v.
Callaway: “This request typifies the lack of specificity that Congress sought to preclude in the
requirement of 5 U.S.C. § 552(a)(3) that records sought be reasonably described.” 554 F.2d at
131.
Plaintiff’s memorandum simply ignores this substantial legal hurdle, offering absolutely
no legal basis for his assertion that the FDIC should have searched for “any information
available.” Not only do the undisputed facts, as set out in the FDIC’s declarations, demonstrate
the reasonableness of the FDIC’s searches in this case, the FDIC’s actions were fully in accord
Plaintiff argues (Pl. Mem. at 6-8) that, because documents disclosed in response to one of
his requests mentioned a study by FDIC staff that was not provided to Plaintiff, “it is irrefutable
that Defendant has not produced all responsive records [and] has failed to satisfy its burden of
demonstrating that its search for records responsive to Plaintiff’s requests was adequate.” Pl.
argument that relies on the Court finding that the FDIC’s initial search was unreasonably narrow.
In addition, this “other referenced document” argument is contrary to the law and the facts.
a. The FDIC Was Not Required To Look Beyond Plaintiff’s FOIA’s Requests
In Determining The Scope Of The Search.
[M]ere reference to other files does not establish the existence of documents that
are relevant to appellant's FOIA request. If that were the case, an agency
responding to FOIA requests might be forced to examine virtually every
document in its files, following an interminable trail of cross-referenced
documents like a chain letter winding its way through the mail.
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Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994); Morley v. CIA, 508 F.3d 1108,
1121 (D.C. Cir. 2007) (“to the extent Morley also contends that the search was inadequate
because the CIA failed to search records referenced in the responsive documents that were
released, Steinberg [] is dispositive”); Davy v. CIA, 357 F. Supp. 2d 76, 84 (D.D.C. 2004).
Plaintiff questions (Pl. Mem. at 6-7) the FDIC’s quotation from Kowalczyk v. Dep’t of
Justice, 73 F.3d 386, 389 (D.C. Cir. 1996), that an agency “is not obligated to look beyond the
four corners of the request for leads to the location of responsive documents.” Plaintiff quotes
the next sentence from that case -- out of context -- to attempt to diminish the impact of the
Court’s statement. Here is the entire discussion, beginning with the full paragraph from which
the FDIC originally quoted in the memorandum in support of its motion for summary judgment:
This is not to say that the agency may ignore what it cannot help but
know, but we suspect that it will be the rare case indeed in which an agency
record contains a lead so apparent that the Bureau cannot in good faith fail to
pursue it. If the agency may reasonably interpret the request to be for records in
a specific office or offices only -- the office to which the request was sent or any
office(s) named in the request -- then upon discovering that it has other
responsive records elsewhere, it may reasonably infer that the requester already
has those records, is seeking them through a separate request, or, for whatever
reason, does not want them. If, on the other hand, the requester clearly states that
he wants all agency records on a subject, i.e., regardless of their location, but fails
to direct the agency's attention to any particular office other than the one
receiving the request, then the agency need pursue only a lead it cannot in good
faith ignore, i.e., a lead that is both clear and certain.
Plaintiff also quotes from Perry v. Block, 684, F.2d 121, 128 (D.C. Cir. 1982):
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Pl. Mem. at 8. The factual situation described in the quote is inapposite to this case. We do not
have a situation where the FDIC released additional records after asserting that there were no
other responsive records. Additionally, the quotation is taken out of context; the court in Perry
affirmed the district court’s grant of summary judgment in favor of the agency, stating: “[A]fter
considerable study of the record, we are not convinced that sufficient ‘positive indications of
While Plaintiff would have the FDIC sleuth through responsive documents for clues to
other responsive documents, “FOIA clearly does not impose this burden upon federal agencies.”
The Kowalczyk Court’s “lead that is both clear and certain” test brings us to another
problem with Plaintiff’s argument concerning the “study” mentioned in the released documents:
It is not at all clear or certain that the referenced “study” would be considered responsive even if
the FOIA request were given the expansive (but factually and legally unsubstantiated) reading
that Plaintiff seeks. The references to the study appearing in the TLGP case memorandum and
Board minutes (also set out in the FDIC’s Supplemental Statement of Material Facts Not In
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enough to push the U.S. into recession or may deepen or prolong a recession if we
are already in one.
Mr. Brown then stated that a recent study by Corporation staff on the effect of a
run on uninsured deposits on economic activity indicates that a 5 percent run
would reduce GDP growth by 1.16 percent per annum in a normal economy while
the same run on a stressed economy could decrease GDP growth by as much as
1.96 percent per annum. With economic growth already dampened, he said, a run
of that magnitude could be enough to push the U.S. into recession or deepen or
prolong a recession if the economy already is in one. Mr. Brown continued,
adding that, while conditions to date do not appear to have reached the level of
these stress scenarios, there is ample evidence over the last few months that there
have been, and continue to be, rapid and substantial outflows of uninsured
deposits from institutions that are perceived to be under stress.
Nothing in these references suggests that the study had any connection at all with the
development of the Temporary Liquidity Guarantee Program being considered by the Board.
Rather, the discussions in which these references appear make clear that the study was but one of
dozens of wide-ranging items of economic and financial background information being provided
to the Board and spanning multiple pages of both the case memorandum and the Board minutes.
A broad, multi-office search for materials relevant to the Board’s TLGP determination -- if such
a search were required -- would be unlikely to independently discover a study “on the effect of a
run on uninsured deposits on economic activity.” See Davy v. CIA, 357 F. Supp. 2d 76, 84
(D.D.C. 2004) (“FOIA cannot be used to troll for documents, which, if they even exist, appear
barely tangential to the subject of Davy's requests and thus unlikely to have been revealed even
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c. Plaintiff Already Has All The Information About The Referenced Document
To Which He Is Entitled.
In any event, Plaintiff already has all of the information on the study that is relevant to
the Board determination on the TLGP. The referenced study in its entirety was not before the
Board when making its determination; rather, it was only before the Board to the extent it was
mentioned in the case memorandum and at the Board meeting itself. See Hammond Declaration
¶¶ 7, 31 (describing contents of Board meeting files and stating that the October 13, 2008 case
memorandum was the only “supporting memo” contained in the Board meeting file). Thus
Plaintiff has already been provided with the complete information concerning the study that was
Conclusion
The FDIC has met its burden under Fed. R. Civ. P. 56 and FOIA case law to demonstrate,
through declarations and other evidence, that it reasonably interpreted Plaintiff’s FOIA requests,
determined a reasonable scope for the searches, and employed search methods reasonably likely
to lead to discovery of records responsive to those requests. In response, Plaintiff has failed to
dispute the material facts as set out in the FDIC’s Statement of Material Facts Not In Dispute and
in the Fisch and Hammond declarations, and has failed to offer legal argument to counter the
well-established legal principles that “any information available” language does not reasonably
describe the records sought, and that an agency is not required to go beyond the four corners of a
FOIA request in a search. Thus, under rule 56, the FDIC is entitled to judgment as a matter of
law. The FDIC’s motion for summary judgment should be granted, and Plaintiff’s Cross-Motion
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Respectfully submitted,
COLLEEN J. BOLES
Assistant General Counsel
BARBARA SARSHIK
Senior Counsel
BARBARA KATRON
Counsel
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