Butts et al v. Gunn et al
Filing
116
MEMORANDUM OPINION re 115 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion for Preliminary Injunction. Signed by Senior Judge Neal B. Biggers on 12/21/2018. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
JEFFREY BUTTS, KIMBERLY BUTTS,
SHARRON BUTTS, SHANALE RENEE HILL,
SANDRA JONES, PATRICIA COX, LANE
TOWNSEND AND MONTGOMERY COUNTY
SCHOOL DISTRICT
V.
PLAINTIFFS
CIVIL ACTION NO. 4:18CV001-NBB-JMV
ROSEMARY AULTMAN, in her official capacity
as Chairman of the State Board of Education;
DR. CAREY M. WRIGHT, in her official capacity
as Superintendent of the Mississippi Department of
Education; JASON DEAN; BUDDY BAILEY;
KAMI BUMGARNER; KAREN ELAM; JOHNNY
FRANKLIN; WILLIAM HAROLD JONES; JOHN
KELLY; AND FRANK MCCLELLAND, all in their
official capacities as members of the Mississippi
State Board of Education; WINONA MUNICIPAL
SEPARATE SCHOOL BOARD; AND MONTGOMERY
COUNTY, MISSISSIPPI
DEFENDANTS
MEMORANDUM OPINION
This cause comes before the court upon Plaintiffs’ Second Motion for Preliminary
Injunction and the State Defendants’ motion to dismiss.1 Upon due consideration of the motions,
briefing, oral arguments, and applicable authority, the court is ready to rule.
1
In addition to the State Defendants’ motion to dismiss, which will be addressed herein, the State Defendants’ motion
for judgment on the pleadings, as well as Plaintiffs’ cross motion for summary judgment, remain pending. Plaintiffs
filed their Third Amended Complaint subsequent to these dispositive motions, however; and the State Defendants’ reurged motion to dismiss, Plaintiffs’ response thereto, and the parties’ briefing appear to address all the pending issues
and arguments which remain viable and relevant that were previously set forth in the motion for judgment on the
pleadings and the cross motion for summary judgment. The court’s ruling herein should, therefore, dispose of all
matters in this case with the exception of Plaintiffs’ claim against defendant Montgomery County, which has neither
filed a dispositive motion nor joined the present motion to dismiss.
Factual and Procedural Background
Plaintiffs initially filed this lawsuit on November 17, 2017, in the United States District
Court for the Southern District of Mississippi, seeking declaratory and injunctive relief
concerning their disagreement with the Mississippi Legislature’s decision to administratively
consolidate the two school districts in Montgomery County, Mississippi, into one countywide
school district. The Southern District court granted Plaintiffs’ motion to change venue, and the
case was transferred to this district on January 5, 2018, and later transferred within the district
from the district judge initially assigned to the case to the undersigned district judge on June 5,
2018.
Plaintiffs’ Third Amended Complaint seeks a declaration that the consolidation statute,
Miss. Code Ann. § 37-7-104.4, is unconstitutional, that it is violative of the constitutional
guarantee of equal protection, that, as implemented, it dilutes voting rights in violation of Section
2 of the Voting Rights Act, 42 U.S.C. § 1973,2 that it should be prevented from taking effect as
drafted, and that the Winona Municipal Separate School District Board, acting as the WinonaMontgomery Consolidated School Board, should be enjoined from taking any further action and
that any action taken to date pursuant to the allegedly unconstitutional statute should be voided.
The State Defendants moved to dismiss all claims asserted by Plaintiffs. Subsequently,
on July 1, 2018, the consolidation statute went into effect, and the two school districts in
Montgomery County were formally consolidated, to be governed by an appointed interim board
2
It appears Plaintiffs’ Section 2 Voting Rights Act claims are now directed only against defendant Montgomery
County and its implementation of the consolidation statute. In the event the court misinterprets Plaintiffs’ intentions,
insofar as the claims are directed at the State Defendants, the court finds that the Voting Rights Act applies to elective
offices only. Chisom v. Roemer, 501 U.S. 380, 399-400 (1991); see also Searcy v. Williams, 656 F.2d 1003, 1010
(5th Cir. 1981) (finding “this case involved an appointive rather than an elective scheme, and thus the district court
was correct in holding that voting rights did not apply”). As will be addressed below, the system contemplated by the
consolidation statute is fully appointive in regard to the interim board and basically appointive in regard to the
permanent board, as a majority of the members are appointed.
2
comprised of the existing Winona Municipal Separate School District Board from July 1, 2018,
until January 1, 2019, at which time the permanent board will take effect. As provided by
statute, the permanent board will consist of three members of the existing “Board of Trustees of
the Winona Municipal Separate School District appointed by the Board of Aldermen of the City
of Winona with the most years remaining in their terms.” Miss. Code Ann. § 37-7-104.4(3)(b).
The two remaining members were elected by Montgomery County voters residing outside of the
Winona corporate limits in November 2018 – one from each of two districts drawn by the
defendant Montgomery County’s Board of Supervisors. The permanent consolidated board will
therefore be a combined board comprised of both appointed and elected members – the majority
appointed.
Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely
granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009). A court must
accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the
plaintiff. Id. But the court is not bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer possibility” that the
plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it must go
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beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action.
Twombly, 550 U.S. at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence of each element of
the plaintiff’s claim. Lormand, 565 F.3d at 255-57. If there are insufficient factual allegations to
raise a right to relief above the speculative level or if it is apparent from the face of the complaint
that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555;
Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 & n.9 (5th Cir.
2007).
In ruling on a Rule 12(b)(6) motion to dismiss, the court generally may not look beyond
the pleadings. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). Matters of public record
and matters of which the court may take judicial notice as well as documents attached to the
complaint are exceptions. Id. at 1343 n.6; Lovelace v. Software Spectrum, Inc., 78 F.3d 1015,
1017 (5th Cir. 1996). Further, “[d]ocuments that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central
to [the] claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2001).
Analysis
Motion for Preliminary Injunction
As an initial matter, the court finds that Plaintiffs are not entitled to a temporary
restraining order or a preliminary injunction. A preliminary injunction is an “extraordinary
remedy.” Texans for Free Enterprise v. Tex. Ethics Comm’n, 732 F.3d 535, 536 (5th Cir. 2013).
A plaintiff seeking a preliminary injunction must clearly show:
(1) A substantial likelihood that he will prevail on the merits, (2) a substantial
threat that he will suffer irreparable injury if the injunction is not granted, (3)
his threatened injury outweighs the threatened harm to the party whom he
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seeks to enjoin, and (4) granting the preliminary injunction will not disserve
the public interest.
Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 457 (5th Cir. 2017). “Failure to
sufficiently establish any one of the four factors requires [the court] to deny the movant’s
requests for a preliminary injunction.” City of Dallas v. Delta Airlines, Inc., 847 F.3d 279, 285
(5th Cir. 2017).
As will be addressed below in the court’s analysis of the State Defendants’ motion to
dismiss, Plaintiffs have not shown a substantial likelihood that they will prevail on the merits nor
have they shown the threat of irreparable injury. Further, even if Plaintiffs had successfully
raised a presumption of irreparable harm, such a presumption may be rebutted by Plaintiffs’
undue delay in seeking injunctive relief which demonstrates “that there is no apparent urgency to
the request for injunctive relief.” Ronaldo Designer Jewelry, Inc. v. Cox, 2017 WL 3879095
(N.D. Miss. Sept. 5, 2017) (quoting Gonannies, Inc. v. Goupair.com, Inc., 464 F. Supp. 2d 603,
609 (N.D. Tex. 2006)); Daily Instruments Corp. v. Heidt, 998 F. Supp. 2d 553, 570 (S.D. Tex.
2014) (“Evidence of an undue delay in bringing suit may be sufficient to rebut the presumption
of irreparable harm.”).
The consolidation statute was passed by the Mississippi Legislature in 2016 and went
into effect on July 1, 2016. Miss. Code Ann. § 37-7-104.4. Yet Plaintiffs did not file the instant
lawsuit claiming the need for emergency injunctive relief until approximately one year and four
months later on November 17, 2017. Such a delay indicates the absence of an emergency nature
to this matter and a lack of risk of irreparable harm, considering the length of time it took
Plaintiffs to discover and present their claims.
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State Defendants’ Motion to Dismiss
Plaintiffs, through counsel, made clear at the hearing in this case held on December 4,
2018, that they challenge the constitutionality of the consolidation statute both on its face and as
implemented by the defendant Montgomery County in its apportionment of the two districts
which will elect the two board members from the county outside Winona’s corporate limits.
Montgomery County has filed no dispositive motion in this matter, however; and the court will
focus only on the State Defendants’ motion to dismiss, which was joined by defendant Winona
Municipal Separate School Board.
Plaintiffs have conceded that “there are no facts to support an equal protection claim
based on race.” Docket 53, 55.
Accordingly, the questions to be addressed here are:
Whether the interim board violates the one person, one vote principle embraced by the
Equal Protection Clause;
Whether the permanent consolidated board violates the one person, one vote principle
embraced by the Equal Protection Clause; and
Whether the consolidation statute survives rational basis review.
I. Interim Board
The interim board, which will shortly conclude its service, is comprised entirely of
members appointed by the governing officials of the City of Winona. It is well-settled that the
“one person, one vote” concept embraced by the Equal Protection Clause applies only to elected
governing bodies. Reynolds v. Sims, 377 U.S. 533 (1964); Sailors v. Bd. of Educ. of Kent
County, 387 U.S. 105 (1967).
Sailors v. Bd. of Educ. of Kent County involved a challenge to the procedure for selecting
county school boards in Michigan. Sailors, 387 U.S. at 108. Local school boards were elected,
6
presumably in accordance with the one man, one vote principle, but the county boards were
chosen by delegates from the local boards. Id. Each local board received one vote, regardless of
the population represented by that board. Id. Despite this fact, the Court held the procedure to
be constitutionally permissible, reasoning:
Viable local governments may need many innovations, numerous combinations of
old and new devices, great flexibility in municipal arrangements to meet changing
urban conditions. We see nothing in the Constitution to prevent experimentation.
At least as respects non-legislative officers, a State can appoint local officials or
elect them or combine the elective and appointive systems as was done here.
Id. at 110-11.
Plaintiffs argue that the board in Sailors is distinguishable from the interim board in the
present case because the board in Sailors was chosen by delegates selected by local school
boards – one delegate from each local board, whereas the interim board in the present case is
comprised solely of residents of the City of Winona. As the defendants assert, Plaintiffs’
argument takes the analysis a step too far. The Court in Sailors did not analyze the residency of
the appointed members to determine whether the structure of the board was one person, one vote
compliant. The doctrine of one person, one vote seeks to protect the voter’s right to an equal
voice in choosing elected representatives, which is not implicated where members of a board are
appointed. Sailors, 387 U.S. at 111. To consider the residency of the interim board members, as
Plaintiffs urge, would be to apply one person, one vote in the context of an appointive system,
which is precisely what Sailors instructs not to do.
Despite the well-settled premise that appointed boards do not trigger one person, one
vote, Plaintiffs argue that “Defendants would have this Court believe that every appointed body
is automatically constitutional.” But this statement misses the mark. Sailors and its progeny do
not stand for the position that appointive systems “automatically” pass muster under all federal
7
laws – simply that they do not implicate one person, one vote. To borrow the State Defendants’
example, an appointive system conceivably could run afoul of constitutional principles if, say, a
plaintiff could establish that an impermissible discriminatory purpose, for example, racial
animus, motivated the legislature to enact the law. In the present case, however, Plaintiffs have
explicitly disavowed any such racial intent claim against the State Defendants.
II. Permanent Board
The permanent consolidated board will be a combined one with three of the five members
appointed by the Board of Aldermen of the City of Winona and two elected from outside the
city’s corporate limits. Because the permanent board will be comprised of appointed and elected
members, two questions are presented:
Whether the one person, one vote principle embraced by the Equal Protection
Clause applies at all to a majority appointed board; and
If so, in what fashion does the principle apply to a majority appointed board so as
to be consistent with Sailors and its progeny?
Sailors and its progeny have made clear that “a State can appoint local officials or
elect them or combine the elective and appointive systems.” Sailors, 387 U.S. at 110-11.
“[W]here a State chooses to select members of an official body by appointment rather
than election, and that choice does not itself offend the Constitution, the fact that each
official does not ‘represent’ the same number of people does not deny those people equal
protection of the laws.” Hadley v. Junior College Dist. of Metro. Kansas City, Missouri,
397 U.S. 50, 58 (1970)).
Courts that have applied this rationale to combined boards have considered
whether the majority of the board was appointed or elected. In Cunningham v.
Municipality of Metropolitan Seattle, 751 F. Supp. 885 (W.D. Wash. 1990), the court was
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faced with the opposite situation presented here; that is, a majority of the board at issue
there was elected, and based on that fact, the court determined the board must be held to
be an elected body and consequently must comply with one person, one vote. As
Plaintiffs note, the court found it “unnecessary to decide whether and how the principle
might apply if only a minority of the [board’s] members were elected,” as is the situation
here. Id. at 893. The court did, however, acknowledge that the system at issue in Sailors,
which did involve an elective step,3 was, as the Sailors Court noted, “basically appointive
rather than elective,” and the one person, one vote principle did not apply. Id.
The parties have not cited, nor is this court aware of, a case precisely analogous to
the factual scenario presented here where the combined board consists of a majority of
appointed members, but common sense dictates and this court finds that, in light of
Sailors and its progeny and consistent with the rationale set forth in cases such as
Cunningham, a majority appointed board should be considered “basically appointive
rather than elective,” and the principle of one person, one vote is therefore not implicated.
The court agrees with the State Defendants that the analysis can stop here.
Assuming arguendo, however, that the concept of one person, one vote does
extend to the permanent board, the second question presented above still cannot be
answered in Plaintiffs’ favor. “In calculating the deviation among districts, the relevant
inquiry is whether ‘the vote of any citizen is approximately equal in weight to that of any
other citizen,’ the aim being to provide ‘fair and effective representation for all citizens.’”
Bd. of Estimate of City of New York v. Morris, 489 U.S. 688, 701 (1989) (quoting
Reynolds, 377 U.S. at 565-66, 579). To advance their claims, Plaintiffs attempt to
3
Under the facts of Sailors, the voters elected local school boards, and these boards then sent one delegate each to
meet and choose the county board. Sailors, 387 U.S. at 106.
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compare the relative “weight” of “votes” between the appointed positions from the City
of Winona with the elected positions from Montgomery County. In other words,
Plaintiffs attempt, in their proposed one person, one vote analysis, to compare votes with
non-votes or elected positions with appointed ones. To do so requires the creation of a
legal fiction – an exercise in which this court is not inclined to engage; and the court is
aware of no case in which another court has previously done so. Indeed, in Cunningham,
the court noted that “since the appointed members are not elected, the court would have
to decide whom they are supposed to represent.” Cunningham, 751 F. Supp. at 894
(addressing the “speculative nature” of trying to apply one person, one vote to appointed
boards). This would be inappropriate and is not required, as again, “the aim of one
person, one vote – to protect each voter’s right to an equal voice in choosing elected
representatives – is not involved where members of a board are appointed.” Id. (citing
Sailors, 387 U.S. at 111). Voters do not elect appointed members. As the State
Defendants urge, this court declines Plaintiffs’ invitation to contort the one person, one
vote principle by distending its application to appointed board members.
III. Rational Basis Review
The right to vote is a “protected right, implicit in our constitutional system, to
participate in state elections on an equal basis with other qualified voters whenever the
State has adopted an elective process for determining who will represent any segment of
the State’s population.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, n.78
(1973). But while all citizens enjoy the right to participate in elections before them on an
equal basis with all other citizens in the jurisdiction, there is no fundamental right to elect
members of a school board. Sailors, 387 U.S. at 108; Mixon v. Ohio, 193 F.3d 389, 403
10
(6th Cir. 1999) (“Although Plaintiffs have a fundamental right to vote in elections before
them, there is no fundamental right to elect an administrative body such as a school
board.”). Further, “[e]ducation . . . is not among the rights afforded the explicit
protection under our Federal Constitution . . . [and] will not alone cause the Court to
depart from the usual standard for reviewing a State’s social and economic legislation.”
Rodriguez, 411 U.S. at 35.
As the present case does not involve a fundamental right, it likewise does not
involve a suspect class. The parties agree that the consolidation statute does not make
distinctions based on any constitutionally suspect classification, such as race.4
Legislative classifications based on geographical criteria do not involve inherently
suspect classes and are thus subject to rational basis review. See Hearne v. Bd. of Educ.
of City of Chicago, 185 F.3d 770, 774 (7th Cir. 1999). In other words, “the Equal
Protection Clause does not prohibit states from treating people located in different
geographic areas differently.” Slade v. Hampton Roads Reg’l Jail, 303 F. Supp. 2d 779,
782-83 (E.D. Va. 2004), aff’d, 407 F.3d 243 (4th Cir. 2005) (citing Salsburg v. Maryland,
346 U.S. 545, 551 (1954)).
In addition to their alleged claims based on the equal protection rights of the
voters of Montgomery County, Plaintiffs also attempt to distinguish a separate
classification for former employees of the Montgomery County School District.
Plaintiffs assert that the consolidation statute “promotes maltreatment of the employees
of Montgomery County Schools by requiring that all employees be terminated, while not
4
Plaintiffs’ Third Amended Complaint incorporates allegations regarding newly-named defendant Montgomery
County’s apportionment of the two elected positions, but those allegations are made only in the context of Plaintiffs’
Voting Rights Act claim.
11
requiring similar treatment of the employees of Winona Municipal Separate Schools.”
Docket 80. This argument is untenable, however, as “[e]mployees of county
governments do not comprise a suspect class, and the holding of public employment is
not a recognized fundamental right.” Arceneaux v. Treen, 671 F.2d 128, 133 (5th Cir.
1982). Plaintiffs have not alleged that any employee or former employee of Montgomery
County School District was treated differently based on his or her race or other protected
class. Further, Plaintiffs concede that the reason for the non-renewal of employees was
because the Montgomery County School District was abolished as of July 1, 2018, and
that non-renewed employees may apply for employment with the consolidated district
and that some have done so and have already been hired.
As neither a fundamental right or a suspect classification is implicated in the case
at bar, strict scrutiny is not appropriate, and the court applies rational basis review.
“[L]egislation . . . that does not employ suspect classifications or impinge on fundamental
rights must be upheld against equal protection attack when the legislative means are
rationally related to a legitimate governmental purpose.” Hodel v. Indiana, 452 U.S. 314,
331 (1981). “Rational basis review begins with a strong presumption of constitutional
validity.” Duarte v. City of Lewisville, Tex., 858 F.3d 348, 354 (5th Cir. 2017). This
presumption “can only be overcome by a clear showing of arbitrariness and irrationality.”
Hodel, 452 U.S. at 332. Rational basis review “requires only that the legislative
classification rationally promote a legitimate governmental objective.” Duarte, 858 F.3d
at 354. The court need only determine “that a purpose may conceivably or may
reasonably have been the purpose and policy of the relevant governmental
decisionmaker,” and not the actual purpose. Id. at 355. “It is irrelevant whether the
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reasons given actually motivated the legislature; rather, the question is whether some
rational basis exists upon which the legislature could have based the challenged law.”
Goodpastor v. City of Indianapolis, 736 F.3d 1060, 1070-71 (7th Cir. 2013). Plaintiffs
carry the burden to show there is no “reasonably conceivable state of facts that could
provide a rational basis for the classification.” Duarte, 858 F.3d at 355. “If the
challenged classification bears a reasonable relationship to the accomplishment of some
legitimate governmental objective, the statute must be upheld.” Yur-Mar, LLC v.
Jefferson Parish Council, 451 F. App’x 397, 401 (5th Cir. 2011).
Applying rational basis review to the case sub judice, the court finds a legitimate
governmental purpose in the legislature’s providing that public funds committed to public
schools be spent in an efficient and effective manner. It is rational for the legislature to
conclude that school districts – each with its own school superintendent, central
administrative office, and school board – and especially smaller school districts such as
Montgomery County, which prior to consolidation served less than 250 students – may
more efficiently spend scarce public funds if those districts are consolidated into larger
administrative units.
The court finds that the legislature could rationally conclude that the
consolidation will not only effectuate the more efficient use of public funds, which in
itself will help all the students of Montgomery County, including those within the
corporate limits of Winona, but that it will also help better serve the students of the
former Montgomery County School District, which, as mentioned, was extremely small –
serving less than 250 students5 – and which fell in the bottom ten performing school
5
The Winona Municipal Separate School District, by contrast, had a total enrollment of 1078 students, according to
enrollment data available from the Mississippi Department of Education. See http://mdereports.mdek12.org/data/.
13
districts in the State of Mississippi, according to the Mississippi Department of
Education’s 2017 Accountability Results. It is rational to conclude that these students
will receive a better education as a result of the consolidation, and another legitimate
governmental purpose will thereby be served.
As to the interim board, the court finds it rational for the legislature to conclude
that a transition period for the administrative consolidation that is the subject of this
lawsuit would be prudent and would best promote an efficient and smooth consolidation.
The legislature could rationally conclude that the existing appointed board of the Winona
Municipal Separate School District should serve as the interim board during the transition
period and allow the election for the two elected positions of the permanent board to
occur, as it did, on the regularly-scheduled general election day in November 2018,
preventing the necessity of a special election, which would impose additional and
unnecessary costs on Montgomery County. The fact that the interim board was
comprised of all appointed members survives rational basis review, as courts have found
that appointed school boards serve the purpose of “insulating school governance matters
from direct political pressures” and “promoting stable school board membership.” Irby v.
Virginia State Bd. of Elections, 889 F.2d 1352, 1355 (4th Cir. 1989). Further, as other
federal courts have found, this court finds that “[s]tate legislatures need the freedom to
experiment with different techniques to advance public education, and this need to
experiment alone satisfies the rational basis test.” Mixon, 193 F.3d at 403 (citing Sailors,
387 U.S. at 110-11).
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Conclusion
For the foregoing reasons, the court finds that Plaintiffs’ second motion for
preliminary injunction should be denied and that the State Defendants’ motion to dismiss
should be granted. All claims except the claim asserted by Plaintiffs’ against defendant
Montgomery County shall be dismissed. A separate order in accord with this opinion
shall issue this day.
This, the 21st day of December, 2018.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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