Education Corporation of America et al v. United States Department of Education et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/5/2018. (AFS)
2018 Nov-05 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EDUCATION CORPORATION OF
AMERICA, et al.,
UNITED STATES DEPARTMENT
OF EDUCATION, et al.,
Civil Action Number
Education Corporation of America, Virginia College, LLC, and New
England College of Business and Finance, LLC (collectively, “ECA”) assert
claims against the United States Department of Education and Betsy DeVos, in her
official capacity as the Secretary of Education (collectively, the “DOE”), for
declaratory and equitable relief. Doc. 1. In particular, as part of its efforts to keep
operating its educational institutions, ECA seeks a declaration that a proposed
restructuring plan will not interfere with its ability to participate in federal financial
aid programs regulated by the DOE. Id. at ¶ 42. In addition, ECA filed an
Emergency Motion for the Appointment of a Receiver and Entry of a Temporary
Restraining Order and Preliminary Injunction. Doc. 2. Basically, ECA asks this
court (1) to enter an order enjoining certain actions and lawsuits against ECA by its
creditors and (2) to appoint a receiver to take possession of ECA’s assets and
execute the restructuring plan. Doc. 1 at ¶¶ 44-50; see also doc. 2. Following an
initial hearing on October 18, 2018, the court entered a stipulated order that,
among other things, gave the DOE an opportunity to file a formal response to the
motion. Doc. 10. The court also entered a temporary restraining order on October
19, 2018, staying and enjoining certain actions against ECA by its creditors to
maintain the status quo until October 29, when the court held a second hearing on
ECA’s motion. Doc. 12. Immediately after the second hearing, the court extended
its TRO by seven days, to allow it an opportunity to consider the parties’
arguments. Doc. 38. As a result, the TRO is set to expire at 5:00 p.m. Central
The DOE opposes the motion and argues that the court does not have
jurisdiction to hear this lawsuit. Doc. 19. Specifically, the DOE argues that there
is no evidence before the court that ECA has submitted its restructuring plan to the
DOE or that the DOE has rejected the plan. As such, the DOE maintains that there
is no case or controversy as required by Article III for the court to have jurisdiction
to hear this case. After careful consideration of the parties’ briefs, docs. 2; 19; 24;
48; 51; 53, 1 and with the benefit of oral argument, the court concludes that ECA
In addition to the parties’ briefs, the court also considered the briefs and arguments
submitted by several of ECA’s landlords and other interested parties, see docs. 20, 25, 29, 32, 33,
35, 39, 42, 45, and other briefs that are not docketed and were sent to the court by electronic
mail. Due to the unique and expedited nature of this action, the court allowed ECA’s landlords
has not shown the existence of a case or controversy within the meaning of Article
III, § 2 of the United States Constitution. As a result, the court does not have
subject matter jurisdiction over ECA’s claims, and this action is due be dismissed
FACTUAL AND PROCEDURAL BACKGROUND
ECA operates colleges and career training schools at seventy-four campuses
throughout the United States, including five campuses in Alabama. Docs. 1 at
¶¶ 3-6; 24-2 at ¶¶ 7, 10. To generate revenue, ECA depends upon tuition and fees
from its students, most of whom receive federal student loans authorized under
Title IV of the Higher Education Act (“HEA”). Docs. 1 at ¶¶ 13-15, 20; 24-2 at ¶¶
17, 19-20. Thus, ECA’s colleges and schools must remain eligible to participate in
Title IV funding for ECA to maintain its revenue stream. See doc. 24-2 at ¶¶ 1920, 35. The DOE regulates ECA’s eligibility for Title IV programs, and ECA’s
participation in the programs requires DOE approval. Docs. 1 at ¶¶ 15-18; 19-1 at
¶¶ 5-8; 24-2 at ¶ 19.
Declining enrollment over several years has led to significant revenue
shortfalls for ECA.
The shortfalls caused ECA to default on many of its
obligations, including its lease agreements, leading numerous landlords to institute
and other interested parties to participate in the October 29, 2018 hearing on ECA’s motion
without entering a formal notice of appearance or, for out-of-state counsel, seeking admission
pro hac vice to this court.
or threaten eviction proceedings. See docs. 1 at ¶¶ 14, 20, 26; 24-2 at ¶¶ 20-21, 2425, 32. ECA contends that it cannot seek protection by “a traditional bankruptcy
filing” from these lawsuits because, under the HEA, a bankruptcy filing
disqualifies an institution from participating in Title IV funding programs. Doc.
24-2 at ¶ 34; see also 20 U.S.C. § 1002(a)(4)(A).
Due to its financial difficulties, on September 5, 2018, ECA informed the
DOE that it plans to close twenty-six of its schools and to teach-out the students
currently enrolled at those schools. Docs. 19-1 at ¶ 14; 24-2 at ¶¶ 27-28; see also
docs. 1 at ¶ 24; 19-1 at 12-13. After informing the DOE of its intention to close
the teach-out schools, ECA developed a proposed “restructuring plan” that would
provide financing to continue its operations in the short term and allow ECA to sell
its remaining schools (the “go-forward schools”) to a group of lenders. See docs 1
at ¶¶ 21, 33; 24-2 at ¶¶ 22, 30, 36. According to ECA, the lenders require the
appointment of a receiver as a condition of their financing and purchase of the goforward schools. Doc. 24-2 at ¶ 22.
During a phone call on October 10, ECA notified a representative of the
DOE that it intended to seek a receivership. Docs. 19-1 at ¶ 18; 24-2 at ¶ 40.
Although ECA inquired, the DOE representative refused to assure ECA that
seeking the appointment of a receiver would not adversely impact ECA’s
eligibility to participate in Title IV funding programs. Doc. 24-2 at ¶ 40. Instead,
the individual informed ECA that it should not assume that the DOE will accept a
receivership over ECA and that “ECA should proceed at its own risk.” Id. ECA
did not present evidence of further communication with the DOE regarding its
proposed restructuring plan, or that it has presented its proposed plan to the DOE
for consideration. See docs. 1; 2; 24.
Six days after the phone call, ECA filed this action against the DOE seeking
a declaration in Count I that its proposed restructuring plan would not interfere
with its ability to participate in Title IV funding programs and that the appointment
of a receiver would not constitute a change in control under DOE regulations. In
Counts II and III, respectively, ECA also seeks an order enjoining certain actions
against ECA by its creditors 2 and an order appointing a receiver “to take
possession of ECA’s business and assets to oversee the administration of the
closure of the Teach-Out Schools and to execute the [proposed] restructuring plan .
. . .” Id. at 17-21. These last two counts seek remedies and are not substantive
causes of action.
Federal courts are courts of limited jurisdiction, and a federal district court
must be satisfied that it can exercise jurisdiction over a claim before reaching the
merits of the claim. E.g., Morrison v. Allstate Indemnity Co., 228 F.3d 1255,
The injunctive relief sought in Count II is similar to the protection provided by the
bankruptcy code’s automatic stay provision. See 11 U.S.C. § 362.
1260-61 (11th Cir. 2000) (citations omitted).
Therefore, because the DOE
contends that the court lacks jurisdiction to hear this dispute, the court begins, as it
must, with determining whether it has subject matter jurisdiction over this matter.
Whether a Case or Controversy Exists
As the party seeking a federal forum, ECA bears the burden of proving the
existence of subject matter jurisdiction. See Federated Mut. Ins. Co. v. McKinnon
Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (citations omitted). To support
its contention that the court has jurisdiction over its claims, ECA directs the court
to § 1082(a)(2) of the HEA. Docs. 1 at ¶ 10; 24 at 3. This section provides that the
DOE may “sue and be sued . . . in any district court of the United States, and such
district courts shall have jurisdiction of civil actions arising under this part without
regard to the amount in controversy . . . ; but no attachment, injunction,
garnishment, or other similar process  shall be issued against the [DOE] . . . .” 20
U.S.C. § 1082(a)(2); see also Bartels v. Alabama Commercial Coll., Inc., 54 F.3d
702, 707 (11th Cir. 1995) (finding that § 1082(a)(2) “provides the federal courts
with an independent jurisdictional grant over cases involving the [DOE’s]
administration of the [Guaranteed Student Loan] program”).
The DOE argues that, regardless of § 1082(a)(2), ECA must still show the
existence of a case or controversy and that it has standing to pursue its claims
against the DOE. 3 Doc. 19 at 6-11. Absent such a showing, the DOE maintains
that the court lacks subject matter jurisdiction over this dispute. Id. Indeed,
notwithstanding § 1082(a)(2), ECA’s claim for declaratory relief must still satisfy
Article III’s case or controversy requirement for the court to exercise subject
matter jurisdiction over the claim. See Susan B. Anthony List v. Driehaus, 573
U.S. 149, 134 S. Ct. 2334, 2341 (2014) (“Article III of the Constitution limits the
jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’”) (quoting U.S Const.,
Art. III, § 2); Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227,
239-40 (1937) (finding that the Declaratory Judgement Act’s “limitation to ‘cases
of actual controversy’” authorizes relief only for claims that meet Article III’s case
or controversy requirement).4
To satisfy the case or controversy requirement, the alleged injury “must be
‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’  An allegation of future injury may suffice if the threatened injury
The doctrine of standing is inextricably intertwined with Article III’s case or
controversy requirement. See Susan B Anthony List v. Driehaus, 573 U.S. 149, 134 S. Ct. 2334,
2341 (2014); Clapper v Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (“One element of the caseor-controversy requirement’ is that plaintiffs ‘must establish that they have standing to sue.”)
(quotation omitted). Based on the parties’ arguments, the question whether ECA has standing to
bring its claim boils down to one issue: whether ECA has alleged or shown an injury that is
“‘concrete, particularized, and actual or imminent . . . .’” See Clapper, 568 U.S. at 409
(quotation omitted); see also docs. 19; 24. Thus, the court addresses ECA’s standing to bring its
claim and the case or controversy requirement together.
The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United States . . . may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201(a).
is ‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.’”
Susan B. Anthony List, 134 S. Ct. at 2341 (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) and Clapper, 568 U.S. at 409).
declaratory judgment actions, “where threatened action by government is
concerned, [courts] do not require a plaintiff to expose himself to liability before
bringing suit to challenge the basis for the threat . . . .” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 128-29 (2007) (emphasis in original omitted).
Turning to the specifics here, ECA seeks a declaration, through Count I, that
it remains eligible to participate in Title IV funding programs despite its proposed
restructuring plan and request for the appointment of a receiver. Doc. 1 at ¶ 42.
ECA argues its claim satisfies Article III’s case or controversy requirement
because the DOE “indicated to ECA the strong likelihood” that ECA would lose its
eligibility to participate in Title IV programs if it seeks and obtains a receivership.
Doc. 24 at 8-10. To support its argument, ECA presents the following evidence:
During [an October 10, 2018] call, ECA requested DOE to confirm
that the moving for the appointment of a receiver in federal court
would not render ECA ineligible to participate under Title IV of the
HEA and that the appointment of a receiver would not constitute a
change of control under the HEA and its implementing regulations.
ECA also notified DOE that it intended to seek the appointment of a
receiver in federal court and explained that it perceived that the
proposed scope of the receiver’s authority would not constitute a
change of control. ECA further explained that it had lined up
financing to support the receivership process and allow the
completion of full services for the Teach-Out Schools as well as the
continued operation of the Go-Forward Schools. A representative of
DOE stated at the end of the call that should ECA seek the
appointment of a federal receiver, ECA should not take for granted
that ECA would remain eligible to participate under Title IV of the
HEA. He noted that DOE’s acceptance of other state receiverships
should not be taken to mean that DOE would accept a federal
receivership over ECA and that DOE would not provide ECA with an
answer to these direct questions. He stated emphatically that ECA
should proceed at its own risk.
Doc. 24-2 at ¶ 40.5 ECA contends that, based on this conversation, “ECA could
only conclude  that DOE would equate or construe the commencement of a
receivership in federal court to a bankruptcy case  or a change in control, thereby
rendering ECA ineligible per se to participate under Title IV of the HEA.” Id.; see
also doc. 24 at 9. And, ECA argues that the law does not require it to “‘bet the
farm’ by taking actions that could subject [it] to liability before obtaining a
declaration of [its] rights.” Doc. 24 at 9 (quoting Surefoot LC v. Sure Foot Corp.,
531 F.3d 1236, 1243 (10th Cir. 2008)).
ECA’s contentions are unavailing. As an initial matter, Surefoot LC v. Sure
Foot Corporation, which ECA cites, is distinguishable. Surefoot arose from a
long-running trademark dispute between the parties.
Surefoot LC filed a
declaratory judgment action against Sure Foot Corporation, asking the district
court to declare that it did not infringe the Corporation’s trademark. 531 F.3d at
1239. The Tenth Circuit found that Surefoot LC’s claim satisfied Article III’s case
The court may consider facts outside of the pleadings to determine if it has subject
matter jurisdiction over an action. See Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir.
2003) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
or controversy requirement based on evidence that Sure Foot Corporation (1)
repeatedly accused Surefoot LC of infringing its trademarks, (2) threatened
litigation if Surefoot LC did not change its name, (3) filed a proceeding before the
U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (“TTAB”)
to cancel Surefoot LC’s trademark, and (4) filed five proceedings before the TTAB
to oppose Surefoot LC’s pending trademark applications. Id. at 1244-45. No
similar evidence exists in this case. Instead, the DOE representative only refused
to respond to or provide assurances about ECA’s proposed restructuring plan
during the course of a single phone call, and ECA did not provide the court with
evidence that it had more discussions with the DOE about the restructuring plan
after that call. See doc. 24-2 at ¶ 40. Simply put, the single call, as described, is
not sufficient to show that the parties have an actual, concrete, or substantial
dispute about ECA’s proposed restructuring plan, or that ECA faces a substantial
risk of injury if it proceeds with its plan.
Next, while ECA is correct that a party does not need to expose itself to
liability before bringing a declaratory judgment action to challenge “threatened
action by [the] government,” see MedImmune, Inc., 549 U.S. 128-29, noticeably
missing here is any allegation that the DOE has threatened any action against ECA.
At best, the complaint alleges only that an unknown employee at DOE refused to
respond to ECA’s single verbal request for information and assurances about
ECA’s continued eligibility for Title IV programs in light of the proposed
restructuring plan. See doc. 24-2 at ¶ 40. Moreover, ECA does not assert that the
DOE has historically found schools ineligible to participate in Title IV programs if
they seek a receivership. See generally docs. 1; 2; 24. In fact, ECA admits that the
DOE has allowed receiverships in the past. See doc. 24-2 at ¶ 33. In that respect,
this case is materially different from those in which the Supreme Court found a
declaratory judgment claim challenging potential government action satisfied
Article III’s case or controversy requirement. See e.g., Susan B. Anthony List, 134
S. Ct. at 2345-46 (holding that the threat of government action created an injury for
purposes of Article III when there was a history of past enforcement of the law at
issue and an agency found probable cause to believe the petitioner’s action violated
the law); Steffel v. Thompson, 415 U.S. 452, 459 (1974) (holding that a petitioner’s
pre-enforcement declaratory judgment claim satisfied the case or controversy
requirement when the police twice threatened to arrest the petitioner for his actions
and had arrested another individual who did not stop the action at issue).
In the absence of any allegation that the DOE threatened to take any action
against ECA in response to the proposed restructuring plan, or that the DOE has
historically found schools ineligible for Title IV funding if they seek a
receivership, the court is left with speculation or conjecture in attempting to
determine how the DOE would respond to ECA’s restructuring plan. This is far
different from the “‘concrete and particularized’ and ‘actual or imminent’” injury
required for a finding that a case or controversy exists. See Susan B. Anthony List,
134 S. Ct. at 2341 (quoting Lujan, 504 U.S. at 560). Consequently, ECA has not
shown that a potential decision finding ECA ineligible to participate in Title IV
funding programs is “‘certainly impending,’ or there is a ‘substantial risk that the
harm will occur.’” Id. Instead, ECA has shown just a possibility of future injury,
which is insufficient to satisfy Article III’s case or controversy requirement. See
Georgia Republican Party v. Sec. and Exch. Comm’n, 888 F.3d 1198, 1202 (11th
Cir. 2018) (“[T]he Supreme Court has ‘repeatedly reiterated that threatened injury
must be certainly impending to constitute injury in fact, and that allegations of
possible future injury are not sufficient.’”) (quoting Clapper, 568 U.S. at 409)
(internal quotation marks, alterations, and emphasis omitted). As a result, the court
is without subject matter jurisdiction over ECA’s claims and must dismiss this
action. See Guevara v. Republic of Peru, 468 F.3d 1289, 1305 (11th Cir. 2006)
(“If the court finds that is does not have subject matter jurisdiction, ‘the court’s
sole remaining act is to dismiss the case for lack of jurisdiction.’”) (quotation
Whether ECA Has Met its Burden of Showing That it is Entitled
Alternatively, to the extent the court is in error on the jurisdiction issue, the
lawsuit is also due to be dismissed because the HEA does not provide a private
right of action. McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1225 (11th Cir.
2002). ECA’s argument that it is asserting a claim under the Declaratory Judgment
Act instead of under the HEA, see doc. 24 at 5, is a distinction without form. The
Declaratory Judgment Act is procedural and does not impact a party’s substantive
rights. Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191, 199
(2014) (citation omitted); see also Skelly Oil Co. v. Phillips Petroleum Co., 339
U.S. 667, 671 (1950) (“The operation of the Declaratory Judgment Act is
procedural only.”). Thus, a plaintiff cannot assert a claim under the Declaratory
Judgment Act in an attempt to enforce a statute that does not provide a private right
of action. See Alabama v. United States, 198 F. Supp. 3d 1263, 1268-73 (N.D.
Ala. 2016) (dismissing the state’s claim for relief under the Declaratory Judgement
Act for alleged violations of the Refugee Act because the Refugee Act does not
provide a private right of action). See also Williams v. Nat’l School of Health
Technology, 836 F. Supp. 273, 281 (E.D. Pa. 1993) (holding that the plaintiffs
could not assert a declaratory judgment claim against the DOE to enforce the HEA
because there is no private right of action under the HEA).
Finally, entry of a preliminary injunction and the appointment of a receiver
are “extraordinary and drastic” remedies that must be employed with caution. See
Netsphere, Inc. v. Baron, 703 F.3d 296, 305 (5th Cir. 2012); All Care Nursing
Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989).
Specifically, a preliminary injunction must “not  be granted unless the movant
clearly establishes, the ‘burden of persuasion’ as to the four requisites,” All Care
Nursing Serv., Inc., 887 F.2d at 1537 (quotation omitted), i.e., “ that he is likely
to succeed on the merits,  that he is likely to suffer irreparable harm in the
absence of preliminary relief,  that the balance of equities tips in his favor, and
 that an injunction is in the public interest,” Winter v. Nat’l Res. Defense
Council, 555 U.S. 7, 20 (2008) (citations omitted). The last two “factors merge
when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435
(2009). In this case, ECA cannot show a likelihood of success on the merits
because there is no private right of action under the HEA. See pp. 12-13, supra.
Also, in light of the public policy reflected in Congress’s decision to exclude
schools that have filed for bankruptcy from eligibility for Title IV funding, see 20
U.S.C. § 1002(a)(4)(A), ECA has not shown that an injunction is in the public
Similarly, ECA has not shown that the appointment of a receiver is justified
here. “[F]ederal courts consider a number of factors regarding the propriety of
A 1991 senate report regarding abuses in federal student aid programs notes a concern
that “[b]y securing the protection of the bankruptcy court, which has an interest in seeing that the
schools survive through reorganization, even a school that cannot make loan refund payments to
former students may continue to admit new students who in turn incur student loan obligations
even though that school may well close or otherwise cut back its educational program.” S. Rep.
No. 102-58, 19 (1991) (alterations in original omitted). The report also “acknowledges that the
Congress and the [DOE] have  instituted a number of important measures [to reform the
Guaranteed Student Loan Program], including: . . . eliminating the bankruptcy recourse used by
schools trying to escape adverse action by accreditation agencies . . . .” Id. at 34.
establishing a receivership, including ‘(1) the probability that fraudulent conduct
has occurred or will occur;’ (2) the validity of the ‘claim by the party seeking the
appointment;’ (3) whether there is an ‘imminent danger that property will be
concealed, lost, or diminished in value;’ (4) the ‘inadequacy of [alternative] legal
remedies;’ (5) the ‘lack of a less drastic equitable remedy;’ and (6) the ‘likelihood
that appointing the receiver will do more good than harm.’” U.S. Bank Nat’l Ass’n
v. LG-328 Huntsville, AL, LLC, No. 17-cv-01378-AKK, 2017 WL 5668392, *1
(N.D. Ala. Nov. 27, 2018) (citations omitted). Just as ECA’s failed to show a
likelihood of success on the merits and that an injunction would be in the public
interest, see p. 14, supra, the second and sixth factors here weigh strongly against
the appointment of a receiver. Also, there is no appearance of fraudulent conduct,
a factor which typically weighs against the appointment of a receiver. See U.S.
Bank Nat’l Ass’n, 2017 WL *3 (citing Citibank, N.A. v. Nyland (CF8) Ltd., 839
F.2d 93, 97 (2nd Cir. 1988); Gordon v. Washington, 295 U.S. 30, 37 (1935)). ECA
suggests that the court should find instead that the absence of fraud weighs in favor
of the appointment of a receiver in this case because ECA is the party seeking the
receivership. Doc. 2 at 11-12. However, ECA did not cite any case in which a
plaintiff sought a federal receivership to protect the plaintiff’s interests in its own
assets, see docs 2; 24; 48,7 and the court has found no such case.
ECA provided the court with a case from the Circuit Court for the County of St. Louis,
Missouri, In re Vatterott Educational Centers, Inc., Case No. 17SC-CC02316, in which Vatterott
Where, as here, ECA has failed to meet its burden of showing an actual
threatened injury from the DOE that is “concrete and particularized” and “actual
and imminent,” Lujan, 504 U.S. at 560 (citations omitted), there is no case or
controversy. As such, the court lacks subject matter jurisdiction over ECA’s
claims, and this action is due to be dismissed. A separate order dismissing this
action without prejudice will be entered. Finally, because the court concludes it is
without jurisdiction, it does not address Pioneer Industrial LLC and Pioneer
Parking Lot, LLC’s motion for joinder, doc. 35; Southern Plaza, LLC’s motion to
intervene and motion for leave, docs. 42 and 43; the Southern Poverty Law
Center’s motions for leave to appear pro hac vice, docs. 55 and 56; and ECA’s
request that the court extend the temporary injunction for a few more days to give
ECA an opportunity to assess its options.
DONE the 5th day of November, 2018.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
Educational Centers, Inc. sought and received the appointment of a receiver to protect its own
financially-troubled schools. See Doc. 53-2. The Vatterott case is distinguishable because
Vatterott brought the case in state court pursuant to a state statute that provides that “[t]he
appointment of a receiver is not required to be relief ancillary or in addition to any other claim,
and may be sought as an independent claim and remedy.” Mo. Stat. § 515.510(6). No similar
statute applies in this case. Instead, as mentioned previously, the appointment of a federal
receiver is only an ancillary remedy, not a substantive cause of action. See Nat’l P’ship Inv.
Corp. v. Nat’l Hous. Dev. Corp., 153 F.3d 1289, 1291 (11th Cir. 1998) (citation omitted).
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