United States of America v. Alabama Department of Mental Health and Mental Retardation

Filing 80

MEMORANDUM OPINION AND ORDER directing the US to file its proposal regarding the injunctive relief it seeks, by no later than 8/20/10; the department may respond or object to the proposal by no later than 9/3/2010, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 7/27/10. (Attachments: # 1 civil appeals checklist)(djy, ).

United States of America v. Alabama Department of Mental Health and Mental Retardation

Doc. 80

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION U N I T E D STATES OF AMERICA, P la in t if f , v. A L A B A M A DEPARTMENT OF M E N T A L HEALTH AND MENTAL R E T A R D A T IO N , D e fe n d a n t. ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-cv-1025-MEF

(W O )

M E M O R A N D U M OPINION AND ORDER T h is is a case in which Plaintiff, the United States of America ("United States"), c o n te n d s that the Alabama Department of Mental Health and Mental Retardation ("the D e p a rtm e n t" ) violated the Uniformed Services Employment and Reemployment Rights Act, 3 8 U.S.C. § 4301, et seq. ("USERRA"), by failing to promptly reemploy Roy Hamilton (" H a m ilto n " ) upon his return from military duty. After weighing the evidence and testimony o f f e re d by the parties during a bench trial, the Court finds that judgment is due to be entered in favor of United States and against the Department. In support of this judgment, the Court m a k e s the following findings of fact and conclusions of law: I . FINDINGS OF FACT 1 . The Department is a state service agency established by the Code of Alabama. 2 . The Department is a large employer with numerous employees at a variety of lo c a tio n s throughout the state.

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3. On July 13, 1987, the Department hired Hamilton as a custodial worker at the J.S. T a rw a te r Developmental Center ("Tarwater"). 4 . Initially, Hamilton's job responsibilities involved maintaining the grounds at the D e p a rtm e n t's Tarwater facility. 5. In 2002, the Department reduced custodial positions when it contracted out all h o u s e k e e p in g services at Tarwater. 6. Having eliminated these in-house positions, the Department assigned the former h o u s e k e e p in g and custodial staff to assisting the Mental Health Workers. 7. The Department created a new job classification for the former housekeeping and c u s to d ia l staff known as Mental Health Assistant ("MHA"). 8. In 2002, the Department reclassified Hamilton from housekeeping/custodian to MHA. 9 . As an MHA, Hamilton's job responsibilities included transporting mental health p a tie n ts to and from different locations and helping patients learn life skills, such as cleaning. 1 0 . In 2002, Hamilton, and other MHAs at Tarwater, took a promotional examination f o r the Mental Health Worker I ("MHW") position. 1 1 . Hamilton passed the MHW exam, but he, and others, declined the promotion and e le c te d to continue working as a MHA. 12. The Department expressly classified the MHA position as a "permanent" position. 1 3 . In mid-August 2003, employees of the Department were notified of the approved p la n for consolidation and closure of several Department facilities.

14. In August 2003, the Department asked each employee in a facility slated for c lo s u re , including Tarwater, to complete, sign, and return a form indicating their desires for a lte rn a tiv e employment. 1 5 . Hamilton completed the form on August 29, 2003, indicating he was available to relocate to the Department's Central Office in Montgomery, Alabama, or to Greil P s yc h ia tric Hospital ("Greil"), also in Montgomery. 1 6 . Unbeknownst to Hamilton, at that time, neither of those two locations had any v a c a n c ie s for MHAs. 17. During Hamilton's tenure at Tarwater, he was also a member of the United States A rm y National Guard. 1 8 . He served in the Alabama National Guard ("National Guard") for 28 years as a S u p p o rt Specialist Non-Commissioned Officer (E-5) with the Military Police in Prattville, A la b a m a . 1 9 . The National Guard stems from Article I, Section 8 of the U.S. Constitution and o p e ra te s under joint federal and state control. 2 0 . In October or November of 2003, the National Guard notified Hamilton that he w o u ld be going on a long-term deployment to Iraq in support of Operation Iraqi Freedom. 21. When Hamilton learned of his deployment in the fall 2003, his supervisor at T a rw a te r was Michael Lackey ("Lackey"), and Hamilton's reviewing supervisor was Robert W is e n b a k e r .

22. Pursuant to the Department's policy at that time, Hamilton notified Lackey that h e would be going on a long-term deployment, beginning some time near Christmas. 23. After Hamilton notified Lackey of his military deployment, Hamilton learned for c e rta in that the Department intended to close the Tarwater facility on December 31, 2003. 24. In an effort to find alternative placements for Tarwater's employees, the

D e p a rtm e n t offered Hamilton a transfer to a facility near Tuscaloosa, Alabama, to fill the p o s itio n of MHW. 25. The Department required Hamilton to accept or decline this offer, despite the fact th a t Hamilton had already told Department officials that he was being deployed to Iraq, and H a m ilto n 's activation was scheduled to occur about the time the transfer would have become e f f e c tiv e . 26. Department officials assured Hamilton that they would continue to look for other o p p o rtu n itie s for him if he declined the transfer. 27. Consequently, on November 24, 2003, Hamilton signed the form and declined the o f f e r to transfer to a position at the Department's facility in Tuscaloosa. At the time H a m ilto n signed this form, he knew he was going to be deployed. 28. Following Hamilton's declination of the transfer, the Department successfully r e l o c a te d several other the Department employees from Tarwater who, like Hamilton, d e c lin e d an initial offer of transfer. 2 9 . Many of Hamilton's coworkers from the Tarwater facility eventually found job p la c e m e n ts at Greil and other locations closer to Montgomery than Tuscaloosa.

30. On or about December 22, 2003, Hamilton received his actual written military O rd e rs for active duty. According to his Orders, Hamilton was to report for active duty on J a n u a ry 2, 2004. 31. On the day he received the Orders, Hamilton was working with his National G u a rd unit preparing for their deployment. 32. Hamilton immediately drove to Tarwater and handed a copy of his written Orders to Lackey. 3 3 . Hamilton's last day worked with the Department was on or about December 29, 2 0 0 3 , after which he took several days of accrued leave to prepare for his deployment. 34. When Hamilton departed for military leave on or about December 29, 2003, T a rw a te r was up and running, and nobody gave Hamilton any documentation stating that he w a s separated, or about to be separated, from his employment with the Department. 3 5 . As of Hamilton's departure for military leave, he had worked for the Department f o r 16 years and five months. 3 6 . Effective December 31, 2003, the Department considered Hamilton to have " v o lu n ta rily resigned" based upon his declination of the transfer to Tuscaloosa on November 2 3 , 2003. Hamilton had already departed to prepare for his military deployment by

D e c e m b e r 31, 2003. 37. Hamilton began his active duty military service on January 2, 2004. 3 8 . Hamilton's administrative separation from the State of Alabama Personnel D e p a rtm e n t ("SPD") was approved on or about January 15, 2004. The SPD separation

document expressly states "continued efforts will be made to find alternative employment f o r [Hamilton] who declined offer of directed transfer." 3 9 . Tarwater permanently closed on January 15, 2004. 4 0 . Hamilton was on active duty from January 2, 2004 until his honorable discharge o n April 11, 2005. 41. During his deployment, Hamilton withdrew funds from his retirement account due to financial hardship. When he did so, the Department did not tell him that he was no lo n g e r an active employee. 42. Also during his deployment, in May 2004, the Department sent Hamilton a letter re g a rd in g its continuing efforts to assist employees displaced as a result of the consolidation a n d closure of facilities with finding alternative placements. 4 3 . Hamilton received this letter when he returned home from Iraq, and assumed that it meant the Department may have found a new placement for him since Tarwater's closure. 44. In April 2005, during the same month as Hamilton's release from active military s e rv ic e , Hamilton sought reemployment with the Department. 45. With his military orders in hand, and dressed in his military uniform, Hamilton f irs t went to Greil, which is where he had heard several of his Tarwater co-workers were w o r k in g . 46. He explained his situation to the receptionist at Greil and asked if he was e m p lo ye d there.

47. She told him that he was not, and suggested he check with the Department's C e n tra l Office. 4 8 . That same day, Hamilton went to the Central Office and sought reemployment. 4 9 . On the same day, Hamilton went to what he believed was the Alabama State P e r s o n n e l Department ("SPD") to seek assistance with reemployment. Again, Hamilton e x p la in e d his situation. The receptionist told Hamilton that he had to direct his

re e m p lo ym e n t request to the Department's Central Office. 5 0 . Over the weeks and months that followed, Hamilton continued to request re e m p lo ym e n t at the Department. He made telephone calls and made in-person visits. 51. The Department did not reemploy Hamilton in 2005. 5 2 . Hamilton did not incur or aggravate a disability during his military service, and w a s fully capable of returning to his pre-service or any similar position. 5 3 . In 2005, Hamilton was qualified for MHA, MHW, custodial worker, laborer, and g ro u n d s k e e p e r positions. 54. The Department could have returned Hamilton to work in 2005 after his initial re q u e s t for reemployment. 55. Because the Department did not reemploy Hamilton in 2005, out of necessity, a p p lie d for and received unemployment benefits. Additionally, he sought alternative

e m p lo ym e n t . He accepted a position with Norment Security in November of 2005, and w o rk e d there through early 2007. 5 6 . He also worked at Big Lots in 2007.

57. In 2007, Hamilton again contacted the Department seeking reemployment. 58. According to Henry Ervin ("Ervin"), the Personnel Director for the Department, H a m ilto n stated that he had been given the run around by the State of Alabama since 2005. 5 9 . The Department reemployed Hamilton in August of 2007, at its Greil facility as a MHA. 6 0 . The Department did not have to secure new funding in order to hire Hamilton in 2 0 0 7 ; it simply moved funding from another open position. 6 1 . At the time of Hamilton's reemployment with Greil, at least one of the MHAs w o rk in g there had been employed with Hamilton at Tarwater. 62. In fall 2007, Hamilton requested the Department provide him with certain benefits h e believed he was entitled to because his continuous employment was interrupted by m ilita ry service. The Department denied Hamilton's request. 6 3 . As a result, on February 6, 2008, Hamilton filed a complaint under USERRA with th e United States Department of Labor. 64. The United States Department of Labor's Veterans' Employment and Training S e rv ic e conducted an investigation and found that Hamilton's claim had merit. 6 5 . The Department of Labor was unable to resolve Hamilton's complaint, and his c a s e was referred to the United States Department of Justice. 66. On December 30, 2008, the United States filed its Complaint in this action a lle g in g that the Department violated USERRA by failing to promptly reemploy Hamilton u p o n his return from active military service.

67. The United States filed suit within the same year that Hamilton filed his complaint w ith the Department of Labor. 68. The Department's compensation for the position of custodial worker position was g ra d e 39 from 2000 to present. 6 9 . Hamilton received a salary of $755.50 bi-weekly at the Department in 2003. 70. Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $755.50 biweekly from April 12, 2005 to September 3 0 , 2005. 7 1 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $800.80 biweekly from October 1, 2005 to December 3 1 , 2005. 7 2 . Hamilton did not receive longevity pay from the Department in 2004 or 2005. Had the Department reemployed Hamilton in April 2005, and treated Hamilton as c o n tin u o u s ly employed during his deployment to Iraq, Hamilton would have earned $500 in lo n g e v ity pay on December 1, 2005. 7 3 . Employees of the Department were entitled to up to 168 hours of military leave p a y in 2004 and 2005. Hamilton did not receive military leave pay from the Department in 2 0 0 4 or 2005. 74. Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , and treated Hamilton as continuously employed during his deployment to Iraq,

Hamilton would have received 168 hours of military leave pay for service in 2004 and 2005 re s p e c tiv e ly, at a rate of $755.50 biweekly ($9.44 per hour), totaling $3,171.84. 7 5 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $800.80 biweekly from January 1, 2006 to March 3, 2006. 7 6 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $867.50 semimonthly from March 4, 2006 to S e p te m b e r 30, 2006. 7 7 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $910.90 semimonthly from October 1, 2006 to D e c e m b e r 31, 2006. 7 8 . Had the Department reemployed Hamilton in April 2005, and treated Hamilton a s continuously employed during his deployment to Iraq, Hamilton would have earned $500 in longevity pay on December 1, 2006. Hamilton did not receive longevity pay from the D e p a rtm e n t in 2006. 7 9 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $910.90 semimonthly from January 1, 2007 to S e p te m b e r 30, 2007. 80. Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $942.80 semimonthly from October 1, 2007 to D e c e m b e r 31, 2007.

81. Had the Department reemployed Hamilton in April 2005, and treated Hamilton a s continuously employed during his deployment to Iraq, Hamilton would have earned $600 in longevity pay on December 1, 2007. 8 2 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $942.80 semimonthly from January 1, 2008 to S e p te m b e r 30, 2008. 8 3 . Had the Department reemployed Hamilton in April 2005 in his pre-service p o s itio n , Hamilton would have earned $975.80 semimonthly from October 1, 2008 to D e c e m b e r 31, 2008. 8 4 . Had the Department reemployed Hamilton in April 2005, and treated Hamilton a s continuously employed during his deployment to Iraq, Hamilton would have earned $600 in longevity pay on December 1, 2008, at the Department. 8 5 . From November 17, 2005 to December 31, 2005, Hamilton earned $4,262.50 at N o rm e n t Security Group, Inc. 8 6 . From January 1, 2006 to December 31, 2006, Hamilton earned $28,491.42 at N o rm e n t Security Group, Inc. 8 7 . From January 1, 2007 to March 16, 2007, Hamilton earned $5,552.22 at Norment S e c u rity Group, Inc. 8 8 . From May 10, 2007 to August 8, 2007, Hamilton earned $5,465.58 at Big Lots. 89. Hamilton was reemployed at the Department on August 16, 2007.

90.

From August 16, 2007 to August 31, 2007, Hamilton earned $888.40

s e m im o n th ly at the Department. 9 1 . From September 1, 2007 to December 31, 2007, Hamilton earned $919.50 s e m im o n th ly at the Department. 9 2 . On December 10, 2007, the Department paid Hamilton $500 in longevity pay. 9 3 . From January 1, 2008 to July 31, 2008, Hamilton earned $919.50 semimonthly a t the Department. 9 4 . From August 1, 2008 to August 31, 2008, Hamilton earned $942.80 semimonthly a t the Department. 9 5 . From September 1, 2008 to December 31, 2008, Hamilton earned $975.80 s e m im o n th ly at the Department. 9 6 . On December 1, 2008, Hamilton earned $500 in longevity pay. 9 7 . Hamilton's back pay damages for the year 2005, including expected earnings had h e been continuously employed at the Department minus his actual earnings, calculated on a quarterly basis, equal $13,064.89 plus interest. 9 8 . Hamilton accrued no additional back pay damages during 2006. 9 9 . Hamilton's back pay damages for the year 2007, including expected earnings had h e been continuously employed at the Department minus his actual earnings, calculated on a quarterly basis, equal $3,190.24 plus interest.

100. Hamilton's back pay damages for the year 2008, including expected earnings h a d he been continuously employed at the Department minus his actual earnings, calculated o n a quarterly basis, equal $354.120 plus interest. 1 0 1 . From April 12, 2005 to September 30, 2005, the Department's employer re tire m e n t contribution rate was 5.57 percent. 1 0 2 . From April 12, 2005 to September 16, 2005, Hamilton would have earned $ 8 ,6 5 8 .0 0 at the Department had he been reemployed. 103. From April 12, 2005 to September 16, 2005, the Department's employer re tire m e n t contribution for Hamilton would have been $482.25. 1 0 4 . From October 1, 2005 to December 31, 2005, the Department's employer re tire m e n t contribution rate was 6.77 percent. 1 0 5 . From October 1, 2005 to November 6, 2005, Hamilton would have earned $ 2 ,0 0 2 .0 0 at the Department had be been reemployed. 1 0 6 . From September 17, 2005 to November 6, 2005, the Department's employer re tire m e n t contribution for Hamilton would have been $186.69. 1 0 7 . Because Hamilton had no new back pay damages in 2006, the parties have not c a lc u la te d retirement damages for the year 2006. 1 0 8 . From January 1, 2007 to September 30, 2007, the Department's employer re tire m e n t contribution rate was 7.78 percent. 1 0 9 . From January 1, 2007 to August 15, 2007, Hamilton would have earned $ 1 3 ,6 6 3 .9 5 at the Department had he been reemployed.

110. From January 1, 2007 to August 15, 2007, the Department's employer retirement c o n trib u tio n for Hamilton would have been $1,063.06. 1 1 1 . From August 16, 2007 to December 31, 2007, the difference between what H a m ilto n would have earned at the Department had he been continuously employed and his a c tu a l the Department earnings was $208.90. 112. From August 16, 2007 to December 31, 2007, the Department's additional e m p lo ye r retirement contribution for Hamilton would have been $21.43. 1 1 3 . Hamilton's total employer retirement contribution damages are $1,730.77. 1 1 4 . Hamilton was a merit system employee of the State of Alabama and the D e p a rtm e n t through December 31, 2003, and is currently a merit system employee of the S ta te of Alabama and the Department. 115. As of July 26, 2009, Hamilton holds 18 years and 5 months service credit at the D e p a r tm e n t. 116. As of May 2010, Hamilton accrues 7 hours and 25 minutes annual leave each p a y period. 117. As of May 2010, Hamilton accrues 4 hours and 20 minutes sick leave each pay p e rio d . 118. Had Hamilton been continuously employed at the Department since the time of h is initial appointment on July 13, 1987, Hamilton would accrue 8 hours and 40 minutes of a n n u a l leave each pay period as of July 26, 2009. 119. Hamilton's current continuous service date at the Department is February 26, 1991.

II. CONCLUSIONS OF LAW 1 . This Court has subject matter jurisdiction over this action pursuant to 38 U.S.C. § 4323(b). 2 . Venue is proper in the Court pursuant to 38 U.S.C. §4323(c)(1) and 28 U.S.C. § 1 3 9 1 (b ). 3. To be entitled to reemployment rights and benefits under USERRA, 38 U.S.C. § 4312(a)(1), a servicemember must (1) give "advance written or verbal notice" of his m ilita ry service to his employer; (2) serve for less than five years; and (3) timely apply for re e m p lo ym e n t upon return. 4. In compliance with Section 4312(a)(1) of USERRA, the credible evidence e s ta b lis h e s that Hamilton gave advance verbal and/or written notice of his military service in 2003. 5 . Hamilton's absence from employment at the Department between January 2004 a n d April 2005 was by reason of service in the uniformed services and did not exceed five ye a r s . 6 . Also in compliance with Section 4312(a)(1) of USERRA, the credible evidence e s ta b lis h e s that Hamilton timely sought reemployment. Because Hamilton's military service e x c e e d e d 180 days, he was obligated under USERRA to seek reemployment within 90 days a f te r completing service. See 38 U.S.C. § 4312(e)(1)(D). Hamilton sought reemployment in April 2005, within the same month of his release from active duty military service, at three lo c a tio n s , Greil Hospital, the "Central Office" of the Department, and the location where H a m ilto n believed the State Personnel Department was located.

7. Because Hamilton, in compliance with USERRA, gave advance notice of his m ilita ry service, served for less than five years, and timely sought reemployment, Hamilton w a s entitled to reemployment rights and benefits under USERRA. 8. USERRA Section 4312(d)(1)(C) does not excuse the Department from its

o b lig a tio n to reemploy Hamilton. This affirmative defense applies to employment that for " b o th a brief, nonrecurrent period" and where there is "no reasonable expectation that such e m p lo ym e n t will continue indefinitely or for a significant period of time." Hamilton held the e m p lo ym e n t status of permanent employee at the Department between 1988 and his absence f o r reason of active duty service in the uniformed services. In addition, Hamilton's

e m p lo ym e n t at the Department was not for a brief, nonrecurrent period. Accordingly, the D e p a rtm e n t cannot meet its burden of proving the "brief non-recurrent period" affirmative defense. 9 . Reemployment of Hamilton in 2005 would not have imposed an undue hardship o n the Department under USERRA Section 4312(d)(1)(B). This affirmative defense, by d e f in itio n , applies only to servicemembers who either are not qualified, or cannot become q u a lif ie d , for reemployment without undue burden to the employer. In 2005, Hamilton was q u a lif ie d for MHA, MHW, custodial worker, laborer, and groundskeeper positions at the D e p a rtm e n t. Reemploying Hamilton in 2005 also would not have caused the Department s ig n if ic a n t difficulty or expense. Accordingly, the Department cannot meet its burden of p ro v in g the "undue hardship" affirmative defense. 10. The Department's circumstances did not change as to make reemployment of H a m ilto n in 2005 impossible or unreasonable under USERRA Section 4312(d)(1)(A). In

2005, the Department hired numerous employees in positions for which Hamilton was q u a lif ie d . Accordingly, the Department cannot meet its burden of proving the "changed c irc u m s ta n c e s " affirmative defense. 1 1 . Hamilton did not waive his USERRA right to reemployment at the Department. To the extent that it is possible to prospectively waive one's employment rights under U S E R R A , there are "strong reasons of policy for ruling out such prospective waivers in all b u t the most exceptional circumstances." Lapine v. Wellesley, 304 F.3d 90, 105 (1st Cir. 2 0 0 2 ). Although Hamilton declined a transfer, which the Department considered a voluntary re s ig n a tio n effective one month later, when the Tarwater facility was scheduled to close, H a m ilto n had already notified the Department of his impending military duty when he d e c lin e d the transfer. Therefore, his voluntary resignation could not operate to terminate his re e m p lo ym e n t rights. See id. at 103. 12. Further, other than declining the transfer, Hamilton did not expressly or by c o n d u c t engage in the kind of behavior that could establish a knowing, voluntary, clear and u n e q u iv o c a l waiver of his USERRA rights. See id. 107-08. Accordingly, Hamilton was e n title d to reemployment despite his declination of the transfer. 1 3 . No statute of limitations, including any state statute of limitations, bars the claim in this action. USERRA expressly provides that there is no limit on the period for filing a c o m p la in t under the statute. 38 U.S.C. § 4327(b). 1 4 . This action is not barred by laches because neither the United States nor Hamilton in e x c u s a b ly delayed in pursuing this case, and there is no evidence of undue prejudice to d e f e n d a n t.

15. With respect to remedies, USERRA provides that the court "may require the e m p lo ye r to compensate the person for any loss of wages or benefits suffered by reason of s u c h employer's failure to comply with the provisions" of the statute. 38 U.S.C. §

4 3 2 3 (d )(1 )(B ). USERRA further provides that a "State shall be subject to the same remedies, in c lu d in g prejudgment interest, as may be imposed upon any private employer." 38 U.S.C. § 4323(d)(3). 16. The court may award lost wages or benefits to the United States for the damages s u f f e re d by Hamilton as a result of the Department's failure to comply with USERRA's re e m p lo ym e n t provisions, and any such award shall be paid, on order of the Attorney G e n e ra l, directly to Hamilton. 38 U.S.C. § 4323(2)(B). 1 7 . USERRA, 38 U.S.C. § 4302(b), expressly supersedes any state statute precluding th e Department from paying prejudgment interest. 18. Hamilton's back pay damages are $21,597.34. 1 9 . Hamilton is entitled to the employer's retirement contribution on his back-pay a w a rd , constituting $1,753.43. 2 0 . Hamilton's annual leave damages are 197.25 hours or $2,187.24, at his current ra te of pay. 2 1 . Hamilton's sick leave damages are 72 hours or $810.72, at his current rate of pay. 2 2 . Hamilton is entitled to restoration of his continuous service date to the date of his original hire, July 13, 1987.

23. The United States is entitled to injunctive relief, including amendments to the D e p a rtm e n t's policies and procedures, to ensure the Department's future compliance with U S E R R A and mandatory training for all the Department managers and personnel officials. 2 4 . The United States is DIRECTED to file its proposal regarding the injunctive relief it seeks, by no later than August 20, 2010. The Department may respond or object to the p ro p o s a l by no later than September 3, 2010. DONE this the 27th day of July, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE