ALGESE 2 v. USA

Filing 119

REPORTED OPINION. The Clerk is directed to enter judgment in favor of Defendant. Signed by Judge Thomas C. Wheeler. (kn) Copy to parties.

In the United States Court of Federal Claims
No. 15-1279C
(Filed Under Seal: July 21, 2016)
(Reissued for Publication: July 29, 2016)
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ALGESE 2 s.c.a.r.l.,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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and
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LOUIS BERGER AIRCRAFT SERVICES,
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INC.,
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Defendant-Intervenor. *
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Post-award Bid Protest; Remand
to Agency for Responsibility
Determination Following Receipt
of New Information; Offeror’s
Duty to Disclose Criminal
Activity of Parent Corporation
and Former Principals.

Kristen E. Ittig, with whom were Christopher R. Yukins and Lauren J. Schlanger, Arnold
& Porter LLP, Washington, D.C., for Plaintiff.
Daniel S. Herzfeld, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., Scott E. Miller and Eva Escalante, Counsel, Naval Supply Systems
Command, Department of the Navy, for Defendant.
David M. Nadler, with whom were Adam Proujansky, David Y. Yang, and Philip E.
Beshara, Blank Rome LLP, Washington, D.C., for Defendant-Intervenor.

OPINION AND ORDER1
WHEELER, Judge.
This bid protest is before the Court again following a remand in which the Court
invited the Navy to conduct a new responsibility determination of the proposed awardee,
Louis Berger Aircraft Services. More than four months ago, the Court had permanently
enjoined the Navy from proceeding with its proposed Louis Berger contract due to multiple
failures to disclose rampant criminal conduct by parent company officers and principals.
Based upon new information, the Navy disagreed with the Court’s decision, asserting that
it had reasonable explanations for each of the violations identified by the Court. The Navy
has now submitted three volumes of new information demonstrating a much more thorough
review, and it requests the Court to lift the permanent injunction so that it may proceed
with the contract award to Louis Berger Aircraft Services.
Background2
On March 4, 2016, the Court issued an opinion and order setting aside the Navy’s
October 7, 2015 award to Louis Berger Aircraft Services for air terminal and ground
handling services at Naval Station Rota, Spain. Algese 2 s.c.a.r.l.v. United States, 125 Fed.
Cl. 431 (2016). In its opinion, the Court permanently enjoined contract performance based
on Louis Berger Aircraft Services’ intentional and material misrepresentations to the
Contracting Officer. Louis Berger Aircraft Services made false certifications under FAR
52.209-5 and FAR 52.209-7 regarding criminal proceedings against the family of Louis
Berger companies and its executives for bribery and fraud. As a result, the Navy’s reliance
on Louis Berger Aircraft Services’ representations rendered its responsibility
determination arbitrary and capricious.
On March 28, 2016, the Government filed a motion for reconsideration of the
Court’s opinion and order or, alternatively, a stay of judgment pending appeal. The
Government based its request on new information not included in the Administrative
The Court issued this decision under seal on July 21, 2016 and invited the parties to submit proposed
redactions of any competitive-sensitive, proprietary, confidential, or other protected information on or
before July 28, 2016. By that date, none of the parties proposed redactions. Thus, the Court reissues the
opinion in its entirety for publication.

1

The facts in this decision are taken from the administrative record, as supplemented. The pages in the
administrative record are numbered in sequence, and the documents are divided by tabs. The Court’s
citations to the administrative record generally are to the page numbers. A few citations are to other sources,
of which the Court takes judicial notice.
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Record. Based on the new information and after a hearing on March 29, 2016, the Court
vacated its judgment and remanded the case to the Navy for 45 days to permit the Navy to
make an updated responsibility determination and to consider issuing a new business
clearance memorandum in light of the Court’s March 4, 2015 opinion and order. The Court
kept the permanent injunction in place. In remanding to the Navy for further consideration,
the Court left open the possibility that the Navy, after considering the newly presented
evidence, would disagree with the Court’s conclusions. In this circumstance, the Court
instructed the Navy that it would have to explain why it came to a different conclusion
from the Court.
On June 1, 2016, the Government filed a status report informing the Court that the
Navy had updated its responsibility determination, and assessed the Court’s legal and
factual determinations based upon 2,500 pages of new information included in the remand
Administrative Record. Administrative Record (“AR”) 1752-80. The Navy concluded
that Louis Berger Aircraft Services is a responsible offeror and should be awarded the
contract. As discussed below, the Navy weighed and considered each of the Court’s
principal reasons for finding that Louis Berger Aircraft Services had made material
misrepresentations. Now, the sole question before the Court is whether the Navy’s
determinations in its updated responsibility determination are arbitrary and capricious, or
lack a rational basis. Even though the Court may not have reached the same conclusion as
the Navy, the Court cannot say that the Navy’s determinations are unreasonable or
unlawful.
Discussion
In a bid protest, this Court reviews an agency’s decision under the standards in the
Administrative Procedure Act (“APA”). 5 U.S.C. §§ 701-706 (2000); see, e.g., Impresa
Construzioni Geom. Domenic Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir.
2001) (stating that the APA standard of review shall apply in all procurement protests in
the Court of Federal Claims). Under the APA, a court shall set aside an agency action if it
is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
The APA standard allows this Court to cancel an agency’s procurement decision if
it lacked a rational basis or if the agency’s decision-making involved a violation of
regulation or procedure. Impresa, 238 F.3d at 1332. The arbitrary and capricious standard
is “highly deferential” and the “protestor bears the burden of proving that a significant error
marred the procurement in question.” Glenn Defense Marine (Asia), PTE Ltd. v. United
States, 720 F.3d 901, 907 (Fed. Cir. 2013) (citations and internal quotation marks omitted).
Under this standard, “the agency’s action must be upheld as long as a rational basis is
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articulated and relevant factors are considered.” Emery Worldwide Airlines, Inc. v. United
States, 264 F.3d 1071, 1085 (Fed. Cir. 2001) (citations omitted).
A protestor faces a “high hurdle” in challenging a responsibility determination.
Supreme Foodservice GmbH v. United States, 112 Fed. Cl. 402, 415 (2013).
Responsibility determinations are “largely a matter of judgment, and contracting officers
are normally entitled to considerable discretion and deference in such matters.” Bender
Shipbuilding & Repair Co. v. United States, 297 F.3d 1358, 1362 (Fed. Cir. 2002) (citation
and internal quotation marks omitted). When such decisions have a rational basis and are
supported by the record, the Court will uphold the decision. Id. at 1362 (citation omitted).
Even if the Court disagrees with the agency’s responsibility determination, it may not
“substitute its judgment for that of the agency.” Watts-Healy Tibbitts A JV v. United
States, 84 Fed. Cl. 253, 258 (2008) (citations and internal quotation marks omitted).
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In its March 4, 2016 opinion and order, the Court provided a detail factual history
supporting its conclusion that Louis Berger Aircraft Services had made material
misstatements. Algese, 125 Fed. Cl. at 434-39. To aid the reader, the Court reproduces a
brief introduction to the awardee’s corporate structure. Louis Berger Aircraft Services, is
part of a family of companies controlled by Berger Group Holdings, Inc. The Louis Berger
family of corporations is described graphically below.3

As guided by the Court’s previous opinion and order, the Contracting Officer’s inquiry on
remand focused primarily on the awardee, Louis Berger Aircraft Services, and its parent
corporation, Berger Group Holdings.

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The chart does not include all Louis Berger companies, merely those at issue in this protest.
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A. Former Chairperson Derish Wolff’s 2014 Plea Agreement
In its previous opinion and order, the Court concluded that Louis Berger Aircraft
Services falsely certified that neither it nor “any of its principals . . . within five years, in
connection with the award to or performance by the offeror of a Federal contract or grant,
have been the subject of a proceeding . . . that resulted in . . . a conviction.” AR 419.
Derish Wolff, the former chairperson of Louis Berger Aircraft Services’ parent
corporation, had been indicted for and pleaded guilty to defrauding the U.S. Agency for
International Development within five years of Louis Berger Aircraft Service’s proposal.
AR 1432. Relying on language in the Department of Justice indictment, the Court
concluded that Mr. Wolff was a “principal” as he owned 25 percent of Louis Berger
Aircraft Services’ parent corporation at the time of his guilty plea. Louis Berger Aircraft
Services asserted that the company had converted Mr. Wolff’s stock to non-voting trust
certificates before his guilty plea, extinguishing Mr. Wolff’s ownership interest.
On remand, the Navy fully developed the record on this issue. The Navy considered
whether: (1) Derish Wolff was a principal under FAR 52.209-7; and (2) his criminal
conviction was in connection with the award to or performance by Louis Berger Aircraft
Services of a Federal contract or grant under FAR 52.209-7. AR 1765. The Navy answered
both of these questions negatively and concluded that Louis Berger Aircraft Services did
not provide false certifications.
1. Mr. Wolff’s Status as a “Principal” Under FAR 52.209-7
The Navy determined that Mr. Wolff had no stock ownership after 2010, five years
before his guilty plea, in Berger Group Holdings, the parent corporation of Louis Berger
Aircraft Services. Mr. Wolff’s 2010 separation agreement required him to sell half of his
shares to Berger Group Holdings and exchange the remaining shares for non-voting trust
certificates within 30 days of executing the agreement. AR 1764; AR 3759 (Separation
Agreement). On September 20, 2010, Mr. Wolff and Berger Group Holdings executed a
promissory note selling half of his shares to the company. AR 3765-70 (Promissory Note).
On September 28, 2010, Mr. Wolff and Berger Group Holdings entered an agreement
exchanging his remaining shares of voting stock for non-voting trust certificates. AR 1764;
AR 3785-87 (Exchange Agreement).
Algese asserts that the Contracting Officer should have viewed any indicia of
ownership conferred by the non-voting trust certificates as sufficient to make Mr. Wolff an
owner, and thus, a principal under FAR 52.209-7. In essence, Algese argues that actual
stock ownership is not necessary for the Contracting Officer to conclude Mr. Wolff was an
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owner: non-voting trust certificates are sufficient to require Louis Berger Aircraft Services
to disclose Mr. Wolff’s 2015 plea agreement. The Contracting Officer disagreed.
Based on this new evidence, the Navy concluded that the promissory note and
non-voting trust certificates did not give Mr. Wolff an ownership interest in Louis Berger
Aircraft Services’ parent company. AR 1766; see AR 3778-84. Regarding the trust
certificates, the Navy concluded that while they convey “‘indicia of ownership,’ the trust
certificates do not confer ownership . . . as it is a debt or financial instrument and a trustee
controls the rights associated with the trust certificate.” Id. As shown in the trust
agreement, only the trustee can vote the shares of the trust, not Mr. Wolff. AR 4024-25;
AR 2836. While the trustee has voting rights, his vote does not allow him to affect the
outcome of a vote. See id. (explaining that the shares must be voted in proportion with the
votes of the remaining shareholders, to ensure that the trustee’s vote has no impact on the
outcome of any matter being voted upon). Although, Mr. Wolff maintained a passive
financial interest in Berger Group Holdings through the trust certificates, he had no ability
to control or influence the Louis Berger family of companies either directly or indirectly.
Further, the trust “is intended to dissociate ownership of the economic interest in
the shares . . . from any of the elements of control or influence ordinarily associated with
actual record ownership.” AR 4024. Thus, under the terms of the trust and shareholders’
agreements, Mr. Wolff retained no title in any company shares and by transferring
ownership of his shares to a trust, his remaining financial interest was severed from any
ownership rights. He had no remaining contingent interest as the trust agreement would
never permit him to own stock. AR 3778 (shareholders’ agreement explaining that only
active employees may own stock); AR 3785 (Mr. Wolff “hereby transfers, assigns and
delivers all of his right, title and interest in the Deposited Shares free and clear”). Even
assuming that incidental benefits of ownership are sufficient to make Mr. Wolff a principal,
he redeemed all of his trust certificates prior to his guilty plea. AR 1765, n.5. Therefore,
it was reasonable for the Contracting Officer to conclude that the trust certificates do not
confer ownership and that Mr. Wolff is not an owner.
Algese mounts a similar argument under FAR 52.209-5(a) which requires an offeror
to certify whether it or its principals have within a three-year period preceding the offer,
been convicted of or had a civil judgment rendered against the offeror or its principals.
FAR 52.209-5(a)(1)(i)(B). According to Algese, the Contracting Officer’s conclusion that
Louis Berger Aircraft Services was not required to make an affirmative certification due to
Mr. Wolff’s conviction was unreasonable. This argument too fails. As with the last, this
FAR provision requires disclosure if a principal has been convicted. As the Contracting
Officer determined, Mr. Wolff was not a principal at the time of his conviction. Even
assuming Mr. Wolff was a principal at the time of the guilty plea, Louis Berger Aircraft
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Services updated its certification to be consistent with the Court’s view that Mr. Wolff was
a principal at the time of his conviction. Algese does not contest that Louis Berger Aircraft
Services updated its certification. Nor does Algese dispute that the Contracting Officer
considered the impact of Mr. Wolff’s misconduct and conviction on Louis Berger Aircraft
Services’ present responsibility. The Contracting Officer has broad discretion in these
procurement matters. CACI Field Servs., Inc. v. United States, 13 Cl. Ct. 718, 725 (1987)
aff’d, 854 F.2d 464 (Fed. Cir. 1988). Here, he exercised his broad discretion to recommend
an award to Louis Berger Aircraft Services after reviewing the relevant information.
2. Mr. Wolff’s Former “Principal” Status Under FAR 52.209-7
Alternatively, Algese argues that, even if Mr. Wolff was not a principal at the time
of his plea agreement, the Navy’s responsibility determination must be rejected because
Mr. Wolff was a principal when he committed the misconduct. Its argument continues that
this former principal status requires an affirmative certification under FAR 52.2097(c)(1)(i). Assuming, without deciding, that Algese’s former principal theory is correct,
the Contracting Officer’s determination that Louis Berger Aircraft Services was not
required to disclose Mr. Wolff’s guilty plea was not irrational. Relying on the plain
language of the FAR provision, the Contracting Officer reasoned that Louis Berger Aircraft
Services was not required to make an affirmative certification because the provision applies
to proceedings that were “in connection with the award to or performance by the offeror of
a Federal contract or grant.” FAR 52.209-7(c)(1) (emphasis added); AR 1767. Mr. Wolff’s
conviction was not in connection with any contract or grant either performed by or awarded
to Louis Berger Aircraft Services. Rather, his conduct was associated with Berger Group
Holdings.
Admittedly, FAR 52.209-7 does not expressly require offerors to disclose
information about former principals. Assuming that the clause could be construed as
ambiguous, the Contracting Officer’s interpretation of an ambiguous clause is entitled to
deference so long as it is reasonable. See Bender Shipbuilding & Repair Co. v. United
States, 297 F.3d 1358, 1362 (Fed. Cir. 2002). Indeed, it is reasonable here. The
Contracting Officer decided that the provision does not require disclosure of former
principal’s actions. All of Mr. Wolff’s criminal activity took place between 1991 and 2010,
before Louis Berger Aircraft Services was part of the Louis Berger family of companies.
AR 1767. It is not unreasonable to conclude that an offeror is not required to disclose the
misconduct of its parent corporation’s former executive that occurred two years before the
offeror existed. As the Contracting Officer determined, Louis Berger Aircraft Services
was “not and could not have been a party to the criminal conduct that preceded its purchase
by Berger Group Holdings.” Id. The Contracting Officer considered the Court’s factual
findings set forth in its March 2015 opinion and order, Algese’s allegations, and over 2,500
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pages of information detailing the Louis Berger family of companies’ conduct and resulting
remedial measures. Louis Berger Aircraft Services disclosed and the Contracting Officer
considered all facts relevant to Mr. Wolff’s misconduct. The Court’s review is narrowly
circumscribed, and the Contracting Officer’s decision was not arbitrary or unlawful. See
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
B. Berger Group Holdings and the 2015 Deferred Prosecution Agreement
Addressing another of the Court’s primary concerns, the Navy considered whether
Berger Group Holdings was “otherwise criminally charged” in connection with a 2015
deferred prosecution agreement against Louis Berger Aircraft Services’ sister corporation
Louis Berger International. Previously the Court concluded that Berger Group Holdings
was “otherwise criminally charged” under FAR 52.209-5 for two reasons: (1) the
Department of Justice formally accused Berger Group Holdings of engaging in a long-term
scheme to bribe foreign officials to win public contracts; and (2) the company’s conduct
presented adequate evidence of irregularities seriously reflecting on the propriety of further
Federal Government dealings. In the briefs leading to the Court’s March 2016 opinion, the
parties contested the scope of the 2015 deferred prosecution agreement. The disagreement
arose from the agreement’s definition of “company.” The deferred prosecution agreement
defined “company” to include Berger Group Holdings. Then, it detailed the alleged
misconduct perpetrated by the “company.” See, e.g., AR 1372-73. After analyzing new
evidence not previously before the Court, the Contracting Officer concluded that Berger
Group Holdings was not included in the definition of “company” and therefore Berger
Group Holdings was not otherwise criminally charged under either definition.
In a new declaration, one of the Assistant U.S. Attorneys who oversaw the drafting
of the criminal complaint and deferred prosecution agreement stated that Berger Group
Holdings was not included in the definition of “company.” In fact, the Department of
Justice did not “accuse Berger Group Holdings of any . . . crimes.” AR 1821-22. Also,
the prosecutorial team evaluated Berger Group Holding’s reorganization of its subsidiaries
that led to creation of the Louis Berger International. Contrary to the Court’s finding, the
team concluded that Berger Group Holdings did not create Louis Berger International as a
shell company in which to dump its criminal liabilities. AR 1821-22. The Department of
Justice’s Criminal Division confirmed the prosecutorial team’s contentions. AR 3546.
Algese argues that the Assistant U.S. Attorney’s explanation of the definition of
“company” should be dismissed because other parts of the deferred prosecution agreement
contradict it. Algese asserts that “company” encompasses more than just Louis Berger
International because the deferred prosecution agreement mentions two Louis Berger
Group executives’ culpable acts. However, the Contracting Officer decided that the
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executives’ actions were properly attributable to Louis Berger International. Due to
corporate restructuring, Louis Berger Group was collapsed into Louis Berger International.
AR 1770; AR 3095, 3098. As the Department of Justice explained, it prosecuted Louis
Berger International because it assumed all liability for the previous entity during the
restructuring process. As previously explained, the Department of Justice did not intend
to implicate Berger Group Holdings in its description of Louis Berger International’s
misconduct.
In vacating its prior judgment and remanding for further consideration, the Court
expressly invited the Navy to reconsider the facts surrounding the 2015 deferred
prosecution agreement. The Court instructed that if the Navy reached a different
conclusion from that of the Court, the Navy must fully explain its basis for doing so. The
Navy has complied with this instruction. While the Court may disagree if it were in the
shoes of the Contracting Officer, it will not substitute its judgment for that of the Navy,
recognizing that reasonable minds could reach differing conclusions. Watts-Healy
Tibbitts, 84 Fed. Cl. at 258 (citing another source). Relying on new facts, the Contracting
Officer considered relevant factors and articulated a rational basis for his conclusions that
Berger Group Holdings was not formally charged and the parent corporation’s conduct did
not present irregularities seriously reflecting on the propriety of further Federal
Government dealings. Thus, Louis Berger Aircraft Services may not have had an
obligation to certify that it or one of its principals was “otherwise criminally charged.” As
a result, the Court must stay its hand and not disturb the Navy’s determination. See, e.g.,
PricewaterhouseCoopers Public Sector, LLP v. United States, 126 Fed. Cl. 328, 350-51
(2016) (collecting cases).
Relatedly, the Contracting Officer’s revised responsibility determination properly
weighed Louis Berger Aircraft Services’ misleading statement that Berger Group Holdings
was not, and has not been, investigated, accused, or charged with any misconduct by the
Government and is not subject to the 2015 deferred prosecution agreement. AR 1413. In
its previous opinion, the Court concluded that this was a material misrepresentation.
Algese, 125 Fed. Cl. at 443-44. Here too, the Contracting Officer carefully examined the
facts surrounding the Court’s determination. The Navy asked Louis Berger Aircraft
Services to address the issue on remand, and the awardee did so in a March 31, 2016 letter.
AR 1971-72. The Contracting Officer concluded that Louis Berger Aircraft’s statement
was “not viewed as misleading or a misrepresentation as the Navy already knew what the
respective roles of the parties were in the 2015 [deferred prosecution agreement] from the
prosecuting attorneys.” AR 1772-73. While the Navy’s explanation appears to address
materiality instead of truthfulness, the Court “will uphold a decision of less than ideal
clarity if the agency’s path may reasonably be discerned.” Colo. Interstate Gas Co. v. Fed.
Power Comm’n, 324 U.S. 581, 595 (1945).
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To the extent Algese asserts Louis Berger Aircraft Services made other material
misstatements, the Navy contends, and the Court agrees, that the Navy was fully aware of
all pertinent facts before proceeding with its award to Louis Berger Aircraft Services. See,
e.g., AR 2558 (Navy’s discussion of purported misrepresentations in awardee’s System
Award Management certifications). The Navy disagrees that the statements were
inaccurate, let alone material to its responsibility determination. Relying on new facts, the
Contracting Officer reviewed relevant information and articulated a rational basis for his
conclusion that Louis Berger Aircraft Services did not make material misstatements. That
rational review process is all that is required for the Court to sustain the Navy’s
conclusions. See Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058
(Fed. Cir. 2000).
C. Past Performance Evaluation
On remand, the Navy reconvened its Past Performance Evaluation Board to evaluate
the factual bases for the Court’s and Algese’s stated concerns with an award to Louis
Berger Aircraft Services. After reviewing all available information, the Evaluation Board
concluded that Louis Berger Aircraft Services is capable of successfully performing the
Rota contract, and that any concerns for affiliated corporations’ bad acts are irrelevant to
the awardee’s performance capabilities. Ultimately, the Evaluation Board awarded Louis
Berger Aircraft Services a substantial confidence rating. AR 1754.
Regarding the integrity of Louis Berger Aircraft Services’ affiliates, the Evaluation
Board reviewed the Court’s prior decision, Algese’s April 15, 2016 letter to the Navy
raising integrity concerns, and the awardee’s responses to the Navy’s requests for
information. See generally AR, Tab 36, 43(1) (USAID Administrative Agreement), 43(2)
(letter from the Army Suspension & Debarment Office), 43(4) (deferred prosecution
agreement). After its review, the Evaluation Board concluded that the additional
information did “not affect [its] confidence in [Louis Berger Aircraft Services’] ability to
successfully perform the required effort at Naval Station Rota,” the criterion by which the
Board was to evaluate past performance. AR 1754. The historical conduct of other Louis
Berger companies, according to the Evaluation Board, is not relevant to this contract. AR
1755. The Court must afford the Navy wide deference in reviewing its past performance
evaluation. See, e.g., Glenn Defense Marine (Asia), PTE Ltd. v. United States, 105 Fed.
Cl. 541, 564-65 (2012) (collecting cases). Where, as here, the Evaluation Board’s past
performance rating is reasonable and consistent with the stated evaluation criterion and
applicable regulations, the Court will not disturb it. Todd Constr., L.P. v. United States,
88 Fed. Cl. 235, 247 (2009) (quoting another source).
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Conclusion
Although the Court’s inquiry into the facts supporting the Navy’s decision is to be
searching and careful, the ultimate standard of review is a narrow one. Bowman Transp.
Inc., 419 U.S. at 285. It is neither the task nor the desire of the Court to conduct the Navy’s
procurement process. Despite its reservations, the Court defers to the Government’s
assertion that the Navy’s contract award is consistent with the goals of its anti-corruption
program. As this case demonstrates, where the Court may disagree with the ultimate award
determination, it will not substitute its judgment for that of the agency. Watts-Healy
Tibbitts, 84 Fed. Cl. at 258 (citing another source). Thus, the Court hereby LIFTS the
permanent injunction. The Clerk of Court shall enter judgment in favor of the Government.
No costs.
This decision was filed under seal on July 21, 2016. The Court invited the parties
to carefully review this opinion for competition-sensitive, proprietary, confidential or other
protected information and submit to the Court any proposed redactions on or before July
28, 2016. As the parties did not propose redactions, the Court reissues the opinion in its
entirety for publication.
IT IS SO ORDERED.
s/ Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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