SHAPIRO v. DEPARTMENT OF JUSTICE

Filing 27

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on February 2, 2015. (lcrmc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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RYAN NOAH SHAPIRO,
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 13-595 (RMC)

MEMORANDUM OPINION
Ryan Noah Shapiro brings suit against the Federal Bureau of Investigation (FBI)
under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking the release of any
records held by the FBI that relate to “Occupy Houston,” an offshoot of the protest movement
and New York City encampment known as “Occupy Wall Street.” On March 12, 2014, the
Court granted in part and denied in part FBI’s motion to dismiss or for summary judgment,
directing FBI to provide more specificity for its withholding certain records pursuant to FOIA
Exemption 7. See Shapiro v. U.S. Department of Justice (Shapiro I), Civ. No. 13-595, 2014 WL
953270 (D.D.C. Mar. 12, 2014). 1 FBI subsequently submitted to the Court a supplemental
memorandum and declaration in support of its withholding decisions, as well as the records at

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Mr. Shapiro also sued under the Privacy Act (PA), 5 U.S.C. § 552a, but the Court deemed that
claim waived in its prior decision. See id. at *4, 14 n.8.
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issue. After conducting an in camera and ex parte review of the records, the Court will grant
FBI’s Motion and dismiss this case. 2
I. FACTS
Inasmuch as Shapiro I set forth much of the factual and procedural background
relevant here, the Court assumes familiarity with that decision and draws liberally from it. To
summarize, Mr. Shapiro is a doctoral candidate at the Massachusetts Institute of Technology. He
seeks records generally concerning Occupy Houston as well as records regarding an alleged plot
by unidentified actors to assassinate the leaders of Occupy Houston. Upon receiving Mr.
Shapiro’s FOIA requests, FBI conducted a records search, identified seventeen pages of
responsive records, produced five of those pages in part and entirely withheld twelve pages
under FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E). Id. at *2-3. In Shapiro I, the Court
found that FBI had conducted adequate searches for responsive records, had properly withheld
records under Exemptions 1, 3, and 6, and could not reasonably segregate non-exempt
information. Id. at *10, 12, 14. The Court also found that FBI’s affiant had spoken in
generalities without sufficient specifics to explain the applicability of Exemption 7, on which it
partially relied to withhold some or all of some records. Id. at *13-14. The Court, therefore,
directed FBI to provide more specificity on this point.
The Court’s initial decision was issued on March 12, 2014. On April 9, 2014, the
FBI filed a Supplemental Memorandum [Dkt. 21] which also included a Third Declaration of
David M. Hardy, Section Chief of FBI’s Record/Information Dissemination Section (RIDS),
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FBI is a component of the Department of Justice (DOJ). While DOJ is the proper defendant in
the instant litigation, the only records at issue here are FBI records. For ease of reference, this
Opinion refers to FBI as Defendant.
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Records Management Division (Third Hardy Decl.) [Dkt. 21-1]. Mr. Shapiro filed a Response
on April 24, 2014 [Dkt. 23] and a Notice of Supplemental Authority on May 8, 2014 [Dkt. 24].
By Minute Order entered on June 4, 2014, the Court directed FBI to submit the records in
dispute for in camera and ex parte review. These were submitted on June 28, 2014 [Dkt. 25] and
Mr. Shapiro filed a Second Notice of Supplemental Authority on October 27, 2014 [Dkt. 26].
II. LEGAL STANDARDS and ANALYSIS
In Shapiro I, this Court denied FBI’s motion to dismiss on grounds of mootness
and failure to state a claim. Thus, the only remaining question in this case is whether FBI’s
motion for summary judgment is warranted based on its claim that it properly withheld
information requested by Mr. Shapiro under FOIA Exemption 7.
A. Motion for Summary Judgment
Summary judgment is justified when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A motion under Rule 56 is
properly granted against a party who “after adequate time for discovery and upon motion . . .
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all
justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence
as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than
“[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252.

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FOIA cases are typically and appropriately decided on motions for summary
judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F.
Supp. 477, 481 n.13 (D.D.C. 1980), aff’d, Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981). In
a FOIA case, a court may award summary judgment solely on the basis of information provided
by the agency in affidavits or declarations when the affidavits or declarations describe “the
documents and the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen,
484 F.2d 820, 826-28 (D.C. Cir. 1973) (requiring agencies to prepare an itemized index
correlating each withheld document, or portion thereof, with a specific FOIA Exemption and the
relevant part of the agency’s nondisclosure justification). An agency must demonstrate that
“each document that falls within the class requested either has been produced, is unidentifiable,
or is wholly [or partially] exempt” from FOIA’s requirements. Goland v. CIA, 607 F.2d 339,
352 (D.C. Cir. 1978) (internal quotation marks and citation omitted).
B. FOIA Exemption 7 3
1. Exemption 7 Generally
FBI claims that the redacted and withheld records are subject to Exemptions 7(A),
(C), (D), and (E). “To fall within any of the exemptions under the umbrella of Exemption 7, a
record must have been ‘compiled for law enforcement purposes.’” Public Employees for Envtl.
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Because the Court concluded in Shapiro I that the FBI conducted an adequate, reasonable, and
good faith search in accordance with FOIA requirements, see id. at *7-8, the general legal
standards for FOIA cases will not be reiterated here.
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Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 202 (D.C. Cir.
2014) (quoting 5 U.S.C. § 552(b)(7)); see also Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir.
1982). The D.C. Circuit has established a two-part, objective test whereby the government can
show that its records are law enforcement records:
Pratt requires, first, that the agency identify a particular individual
or a particular incident as the object of its investigation and specify
the connection between that individual or incident and a possible
security risk or violation of federal law. The agency must then
demonstrate that this relationship is based on information sufficient
to support at least a colorable claim of the connection’s rationality.
This inquiry, while necessarily deferential, is not vacuous. In order
to pass the FOIA Exemption 7 threshold, . . . an agency must
establish that its investigatory activities are realistically based on a
legitimate concern that federal laws have been or may be violated
or that national security may be breached. Either of these concerns
must have some plausible basis and have a rational connection to
the object of the agency's investigation.
King v. United States Dep’t of Justice, 830 F.2d 210, 229-230 (D.C. Cir. 1987) (alterations in
original) (internal quotation marks and citations omitted). The upshot of this two-part test is that,
in assessing whether records were compiled for law enforcement purposes, the “focus is on how
and under what circumstances the requested files were compiled, and whether the files sought
relate to anything that can fairly be characterized as an enforcement proceeding.” Jefferson v.
Dep’t of Justice, Office of Prof’l Responsibility, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (internal
quotation marks and citations omitted). For instance, records compiled “in connection with
investigations that focus directly on specific alleged illegal acts which could result in civil or
criminal sanctions” are records compiled for law enforcement purposes, as distinguished from
records compiled in connection with the government’s “customary surveillance” of its
employees’ performances. Id. at 177 (citing Rural Housing Alliance v. Dep’t of Agric., 498 F.2d
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73, 81 (D.C. Cir. 1974)). It should be noted, however, that the investigation need not “lead to a
criminal prosecution or other enforcement proceeding in order to satisfy the ‘law enforcement
purpose’ criterion.” Pratt, 673 F.2d at 421.
FBI’s initial explanations for its reliance on Exemption 7 “failed to state a rational
basis for its investigation or [any] connection to the withheld documents” because its
declarations did not “supply specific facts as to the basis for FBI’s belief that the Occupy
protestors might have been engaged in terroristic or other criminal activity.” Shapiro I, 2014
WL 953270, at *13. In response to this Court’s holding, the FBI Record/Information
Dissemination Section reexamined the 17 pages at issue and submitted a third declaration from
Mr. Hardy. See Third Hardy Decl. ¶ 3. Mr. Hardy’s third declaration makes plain that while his
prior declarations may not have clearly demonstrated the capacity in which law enforcement
capacity were compiled, FBI was investigating potential criminal activity in various cities by or
against protestors in the Occupy movement. He states:
While this material was generally compiled “concerning potential
investigations into criminal act regarding the ‘Occupy’ movement in
Houston” (See First Hardy Declaration, ¶ 22.) . . . and “potential criminal
activity by protestors.” (See Second Hardy Declaration, ¶ 18.), these
cautious generalizations may have triggered the unintended and
regrettable conclusion that the protestors themselves, or the protest
movement, were the focus of investigative inquiry. In fact, the actual
identity of the alleged perpetrators is unknown. A more precise
generalized statement would have been that the responsive material was
compiled while investigating potential criminal acts regard the “Occupy”
movement in Houston, along with other cities, including potential
criminal activity by or against protestors . . . .
Id. ¶ 3 (emphases in original). More specifically, as to Occupy Houston, Mr. Hardy states:
In this particular case, the specific nature for the compilation of these
records relates to the investigation of threats made against those
participating in the protests or reports received from a Confidential
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Human Source (“CHS”) of other potential attacks against certain targets
or entities.
Id. (emphasis added). Further, Mr. Hardy specifies that the records with Bates-stamps Shapiro 13 and 10-17 “pertain to the investigation of and sharing of criminal intelligence related to
terroristic threats and/or reports of potential violence against protest participants.” Id. ¶ 4.a.
Those records with Bates-stamps Shapiro 4-8 “pertain to specific criminal intelligence related to
planned infrastructure attacks against identified targets/entities by criminal elements reported by
an FBI CHS.” Id. ¶ 4.b. 4 To emphasize his points, Mr. Hardy then declares that “[t]he FBI
specifies that the records at issue were compiled to investigate threats made against protestors
participating in Occupy movements or potential infrastructure attacks against certain targets or
entities received by a CHS.” Id. ¶ 5. Having now reviewed the precise records, the Court finds
that the Third Hardy Declaration sufficiently identifies them as compiled for law enforcement
purposes and provides a legitimate basis for FBI’s withholding under Exemption 7.
Mr. Shapiro’s response, filed before the Court ordered an in camera and ex parte
review of the records at issue, argues about the inconsistencies among the three Hardy
Declarations and urges the Court to conduct its own review, “mindful of the somewhat confusing
information in the record about which documents related to an investigation into criminal
activity by the protestors and which related to an investigation into criminal activity against the
protestors.” Pl. Response [Dkt. 23] at 5. The Court has now conducted the requested review.
Mr. Shapiro’s first Notice of Supplemental Authority submitted a declaration by Mr. Hardy
submitted in Shapiro v. Dep’t of Justice, Civ No. 13-1139 (RBW) (filed May 5, 2014, D.D.C.),
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The record that is Bates-stamped Shapiro 9 does not mention any Occupy protests in Houston,
Texas and is not responsive to Mr. Shapiro’s request. Third Hardy Decl. ¶ 4 n.1.
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in which Mr. Hardy stated that “the FBI determined that it had never opened an investigation on
the Occupy movement.” Id. This declaration is consistent with the record in this FOIA case
now before the Court: FBI investigated threats against protesters and against infrastructure
targets. Mr. Shapiro’s second Notice of Supplemental Authority raises an alleged inconsistency
regarding FBI’s search for responsive records, a search that this Court has already deemed
reasonable. This Supplemental Authority is not relevant to the only remaining issue in this case:
FBI’s reliance on FOIA Exemption 7.
Having reviewed the documents and concluded that FBI has met FOIA’s
threshold requirement of showing that the records were “complied for law enforcement
purposes,” the Court turns to whether the withheld records fall within any of the enumerated
exemptions.
2. Exemption 7(A)
FOIA Exemption 7(A) authorizes an agency to withhold a record where its
production “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C.
§ 552(b)(7)(A). The agency must show that release of the records reasonably could be expected
to cause some distinct harm to pending or imminent enforcement proceeding or investigation.
See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978); Butler v. Dep’t of Air Force,
888 F. Supp. 174, 183 (D.D.C. 1995), aff’d, 116 F.3d 941 (D.C. Cir. 1997); Kay v. FCC, 976 F.
Supp. 23, 39 (D.D.C. 1997), aff’d, 172 F.3d 919 (D.C. Cir. 1998). “Under exemption 7(A) the
government is not required to make a specific factual showing with respect to each withheld
document that disclosure would actually interfere with a particular enforcement proceeding.”
Barney v. IRS, 618 F.2d 1268, 1273 (8th Cir. 1980) (citation omitted). “Rather, federal courts

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may make generic determinations that, ‘with respect to particular kinds of enforcement
proceedings, disclosure of particular kinds of investigatory records while a case is pending would
generally 'interfere with enforcement proceedings.’” Id. (quoting Robbins Tire, 437 U.S. at 236).
FBI argues that Exemption 7(A) applies to two documents in their entirety: the
records that are Bates-stamped Shapiro 1-3 and Shapiro 14-17. These records are “intelligence
reports,” which are “text-based briefing[s] or information-sharing product[s], generally prepared
for senior management officials to inform them about current threats.” Second Hardy Decl.
[Dkt. 13-1] ¶ 21. According to the special agent overseeing these investigations, “some of the
information contained in these documents pertain to pending investigations which are currently
being investigated with the assistance of active FBI sources. A premature release of this
information will not only expose the source, but will reveal the target, focus, and scope of the
investigation [thus] negatively impacting this ongoing investigation.” Id. ¶ 22. Upon further
review, the FBI determined that it was unable to segregate any non-exempt information “without
negatively impacting the on-going proceedings.” Id. ¶ 23. After conducting its own review, the
Court agrees that the records labeled Shapiro 1-3 and Shapiro 14-17, as well as redactions in
other documents subject to this exemption, were properly withheld under Exemption 7(A) given
that releasing parts of the records could reasonably interfere with FBI enforcement proceedings
by identifying suspects and sources, and by otherwise jeopardizing an open investigation. 5
3. Exemption 7(C)
Exemption 7(C) exempts law enforcement material “to the extent that the
production of such law enforcement records or information could reasonably be expected to
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FBI also argues, and the Court agrees, that information in these records is subject to Exemption
7(D), which protects against the release of personal identifiers for confidential sources.
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constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In assessing
an agency’s claim under exemption 7(C), the district court must weigh the privacy interests
asserted against the public interest in disclosure. Voinche v. FBI, 412 F. Supp. 2d 60, 68 (D.D.C.
2006). However, as a general rule, third-party identifying information contained in such records
is “categorically exempt” from disclosure. Nation Magazine, Wash. Bureau v. U.S. Customs
Serv., 71 F.3d 885, 896 (D.C. Cir. 1995); Mays v. Drug Enforcement Admin., 234 F.3d 1324,
1327 (D.C. Cir. 2000) (“Absent exceptional circumstances, the balance categorically favors
withholding the names and addresses of third parties . . . .”). In addition, “[a]s a result of
Exemption 7(C), FOIA ordinarily does not require disclosure of law enforcement documents (or
portions thereof) that contain private information.” Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir.
2011) (citing cases). “The D.C. Circuit has consistently held that Exemption 7(C) protects the
privacy interests of all persons mentioned in law enforcement records, including investigators,
suspects, witnesses and informants, and has determined that such third-party information is
categorically exempt from disclosure under [E]xemption 7(C), in the absence of an overriding
public interest in its disclosure.” Shapiro v. DOJ, Civ. No. 13-729 (PLF), 2014 WL 1280275, at
*4 (D.D.C. Mar. 31, 2014) (quotations omitted).
FBI applied this exemption in conjunction with Exemption 6 to withhold names
and/or identifying information of FBI Special Agents, FBI support personnel, third parties who
provided information to FBI, third parties mentioned in the records, and non-FBI federal
employees. Mr. Shapiro challenges only the names and/or identifying information of individuals
who provided information to FBI, asserting that no privacy concern is implicated by releasing
data about those individuals who could be called to testify as witnesses at trial. However, as set

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forth in the Second Hardy Declaration, these individuals still have a “well recognized privacy
interest” that is “not outweighed by any public interest in disclosure.” Second Hardy Decl. ¶ 24.
Recognizing “the stigma of being associated with any law enforcement investigation,”
Exemption 7(C) “affords broad privacy rights to those who are connected in any way with such
an investigation unless a significant public interest exists for disclosure.” Shapiro, 2014 WL
1280275, at *3 (citations omitted). “[U]nless access to the names and addresses of private
individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to
confirm or refute compelling evidence that the agency is engaged in illegal activity, such
information is exempt from disclosure.” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926
F.2d 1197, 1206 (D.C. Cir. 1991). Here, Mr. Shapiro offers no evidence of misconduct, nor does
he demonstrate any public interest that could outweigh the recognized privacy interests of the
private individuals identified in the responsive records. The Court agrees with FBI that revealing
the names of individuals associated with law enforcement activities could unnecessarily expose
them to retaliation, embarrassment, or harassment. Accordingly, the Court concludes that the
names of and identifying information about third parties is properly withheld under FOIA
Exemption 7(C).
4. Exemption 7(D)
FOIA Exemption 7(D) allows the withholding of records if their disclosure “could
reasonably be expected to disclose the identity of a confidential source. . . .” 5 U.S.C.
§ 552(b)(7)(D). “[I]n the case of a record or information compiled by criminal law enforcement
authority in the course of a criminal investigation,” the agency may also withhold “information
furnished by a confidential source.” Id. A confidential source includes “a State, local, or foreign

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agency or authority or any private institution which furnished information on a confidential
basis.” Id. The “paramount objective” of this exemption “is to keep open the Government’s
channels of confidential information.” Birch v. U.S. Postal Serv., 803 F.2d 1206, 1212 (D.C.
Cir. 1986).
Whether or not a source or the information provided is subject to Exemption 7(D)
depends on “whether the particular source spoke with an understanding that the communication
would remain confidential.” Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993) (emphasis in
original). “A source is confidential within the meaning of exemption 7(D) if the source provided
information under an express assurance of confidentiality or in circumstances from which such
an assurance could be reasonably inferred.” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir.
1995) (internal quotation and citation omitted). An implied assurance of confidentiality may be
inferred from evidence showing the circumstances surrounding the imparting of the information,
including the nature of the crime and the informant’s relationship to the crime. Landano, 508
U.S. at 179.
Mr. Shapiro argues that information redacted by FBI on the grounds of implied
confidentiality is improper because FBI has not clearly established the nature of the crime at issue or
the source’s relationship to the information. Further, he contends there is “no evidence that fear of
the group at issue (or type of group) is ‘so widespread to justify an inference that sources of
information relating to’ their activities can expect their identities and the information they provide to
be kept confidential.” Pl. Opp. at 29 (quoting Computer Prof’ls for Soc. Responsibility v. Secret
Serv., 72 F.3d 897, [906] (D.C. Cir. 1996)). However, FBI has articulated that the names and
information withheld on the basis of implied confidentiality are from “individuals who are members
of organized violent groups” that “come into contact with criminal elements and share information

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that such elements believe is not intended for disclosure to law enforcement.” Second Hardy Decl.
¶ 26. Mr. Hardy explains that “[i]nformation provided by these sources is singular in nature due to
their source closeness with criminal elements” and “[w]ith all certainty, these individuals will not
share this information with any law enforcement agency if they are aware that their identities and the
information they provided will be further disclosed.” Id.
Based on these statements and a review of the documents, the Court finds that
Exemption 7(D) applies to protect the names of and information about individuals whose relationship
to criminal activity stems from their involvement in “organized violent groups.” As members of
these violent groups, the sources could reasonably expect retaliation unless their activities were kept
confidential, particularly in light of the fact that the groups believe such information should not be
shared with law enforcement agencies.

5. Exemption 7(E)
Exemption 7(E) protects the disclosure of records or information that “would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “Exemption
7(E)’s requirement that disclosure risk circumvention of the law ‘sets a relatively low bar for the
agency to justify withholding.’” Public Employees, 740 F.3d at 204-05 (quoting Blackwell v.
FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). “To clear that relatively low bar, an agency must
demonstrate only that release of a document might increase the risk ‘that a law will be violated
or that past violators will escape legal consequences.’” Id. at 205 (Mayer Brown LLP v. IRS, 562
F.3d 1190, 1193 (D.C. Cir. 2009)).

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The first Hardy Declaration asserts that Exemption 7(E) applies to three types of
investigative techniques and procedures: (1) case file numbers, based on a file numbering system
that identifies the investigative interest or priority given to such matters; (2) collection and/or
analysis of information, specifically the manner in which FBI applies and analyzes information
for use in its investigations and intelligence purposes, which is not publicly known; and (3) law
enforcement techniques utilized to conduct national security and intelligence investigations.
First Hardy Decl. [Dkt. 9-1] ¶¶ 82-84. Mr. Shapiro argued that such descriptions are generic and
offer no clear explanation as to what harm could result from disclosure. In response, Mr. Hardy
clarified that “[r]evealing the techniques, potential targets of the techniques, and/or the nature of
the information gleaned via their use in the context of this material would effectively reveal
specifics of how, and in what settings the techniques are employed” and that as a result,
“criminal targets would be better able to avoid detection by developing countermeasures to
circumvent the ability of law enforcement officials to use the techniques, thus rendering them
useless to the FBI and other law enforcement agencies.” Second Hardy Decl. ¶ 27. Specifically,
Mr. Hardy explains that revealing the titles of certain investigative units could alert individuals
to a type of technique or activity used by FBI that might not necessarily be anticipated by
criminal actors. Id. ¶ 28. Furthermore, addressing Mr. Shapiro’s argument that some of the
redactions made pursuant to Exemption 7(E) do not appear to fall into any of the enumerated
categories, Mr. Hardy stated that the release of such information such as internal web addresses and
phone numbers could lead to “massive, disruptive, and misleading amounts of communications as
well as harassment and threats” and “could enable circumvention of the law by allowing criminals to
gain access to internal communication channels used by the FBI to communicate internally.”
Id. ¶ 29. Considering both FBI’s arguments and the documents themselves, the Court is

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confident that FBI has met the “relatively low bar” of demonstrating how individuals could use
the withheld information to circumvent the law either by altering their criminal behavior after
learning of FBI’s specific investigative techniques or by disrupting FBI activity.
III.

CONCLUSION

The Court finds that FBI properly cited FOIA Exemption 7, involving law
enforcement records, as one reason for its partial denial of Mr. Shapiro’s FOIA request into
records concerning Occupy Houston. With the submission of the Third Hardy Declaration and
its own in camera review of the contested records, the Court concludes that FBI’s reliance on
Exemption 7 was proper. The motion for summary judgment [Dkt. 9] will be granted and
judgment will be entered in favor of Defendant. A memorializing Order accompanies this
Opinion.

/s/
ROSEMARY M. COLLYER
United States District Judge

Date: February 2, 2015

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