M.S. v. Utah School for the Deaf and the Blind

Filing 141

MEMORANDUM DECISION AND ORDER AWARDING ATTORNEYS' FEES TO PLAINTIFF-denying 136 Motion for Attorney Fees; granting in part and denying in part 137 Motion for Attorney Fees. Plaintiff shall be awarded attorneys fees in the amount of $162,043.18. Signed by Judge Ted Stewart on 12/26/17. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
M.S., a minor, by and through her parent,
J.S.,

MEMORANDUM DECISION AND
ORDER AWARDING ATTORNEYS’
FEES TO PLAINTIFF

Plaintiff,
v.
UTAH SCHOOL FOR THE DEAF AND
THE BLIND,

Case No. 2:13-CV-420-TS
District Judge Ted Stewart

Defendant.

This matter is before the Court on the parties’ motions regarding the proper award of
attorneys’ fees to Plaintiff following remand from the Tenth Circuit. For the reasons discussed
below, the Court will award Plaintiff attorneys’ fees in the amount of $162,043.18.
I. BACKGROUND
Plaintiff, M.S., by and through her mother, J.S., originally filed this suit on June 7, 2013,
based on alleged violations of the Individuals with Disabilities Education Act (“IDEA”) by
Defendant Utah School for the Deaf and Blind (“USDB”). On January 8, 2013, J.S. filed for a
due process hearing to resolve a number of concerns primarily regarding M.S.’s Individual
Education Programs (“IEP”) for the 2010-2011, 2011-2012, and 2012-2013 school years.
Plaintiff presented five procedural issues and seven substantive issues to the hearing officer for
decision. The procedural issues presented were as follows: (1) Did USDB pre-determine
extended school year services for the student for 2011 and 2012? (2) Was J.S. denied meaningful
participation in three of the IEP team meetings? (3) Did USDB revise the 2010-2011 IEP outside
of an IEP team meeting? (4) Did USDB discontinue using the FM system without the approval

1

of the IEP team and without noticing J.S.? (5) Did USDB fail to give J.S. written notice of the
changes made to M.S.’s 2011-2012 IEP?
The seven substantive issues presented were as follows: (1) Is USDB obligated to
reimburse J.S. for the travel expenses incurred in obtaining M.S.’s IEE conducted by Perkins?
(2) Were the IEPs for the 2010-2011 and 2011-2012 school years appropriate? (3) Did USDB
fail to properly implement M.S.’s IEP for the two years preceding the Complaint? (4) Should
USDB have identified M.S. as both deaf and blind in the IEP and provided services accordingly?
(5) Was Provo School District an appropriate placement for M.S.? (6) Did USDB propose an IEP
for the 2012-2013 school year that was reasonably calculated to provide M.S. with an education
benefit? (7) Should M.S. be placed at Perkins at USDB’s expense?
The hearing officer issued a decision on May 20, 2013, finding that USDB violated the
IDEA and denied M.S. a free and appropriate public education (“FAPE”) for the summers of
2011 and 2012 and ordered compensatory services accordingly. The hearing officer further
found that USDB’s proposed placement to Provo School District was not appropriate. On all
other matters, the hearing officer found in favor of USDB.
Plaintiff sought review of the hearing officer’s decision in this Court. Both M.S. and
USDB filed motions for judgment on the administrative record. The Court issued its Order on
August 25, 2014, which affirmed in part and reversed in part the hearing officer’s May 10, 2013
Order. Regarding the procedural issues, the Court reversed the hearing officer’s decision that
USDB’s discontinued use of the FM system during the 2011-2012 school year without approval
of the IEP team and without written notice to J.S. did not deny M.S. a FAPE. The Court upheld
the hearing officer’s decision on all other procedural issues.

2

Regarding the substantive issues, the Court reversed the hearing officer’s decision and
held in favor of M.S. on several issues. First, the Court held that USDB was obligated to
reimburse J.S. for travel-related expenses incurred in connection with the Perkins IEE. Second,
though the Court agreed with the hearing officer that the IEPs for the 2010-2011, 2011-2012, and
2012-2013 school years were adequate, the Court found that the 2011-2012 IEP was not
adequately implemented.
Third, the Court found that USDB failed to properly take into account M.S.’s dual
sensory loss and that USDB must consider M.S.’s hearing loss when strategizing M.S.’s IEPs.
Further, the Court agreed with the hearing officer that placement at Provo School District would
be inappropriate because of the reduction of available services. The Court directed M.S.’s IEP
team to determine if Perkins was a necessary placement for M.S. Finally, in light of its finding
that M.S. was denied a FAPE for the 2010-2011 academic year, the Court ordered an academic
year and a half of compensatory education.
As the undisputed prevailing party, Plaintiff moved for an order awarding attorneys’ fees.
The Court awarded Plaintiff a fraction of the requested fees on account of Plaintiff’s limited
success. More specifically, the Court awarded Plaintiff 30 percent of the requested fees for work
associated with the administrative hearing and 40 percent of the requested fees for work
associated with the proceedings in this Court, for a total of $77,489.10.
M.S. appealed the Court’s ruling to leave the decision of M.S.’s placement at Perkins to
her IEP team. Plaintiff also appealed the Court’s decision regarding attorneys’ fees.

3

The Tenth Circuit vacated the Court’s orders and remanded two issues for the Court to
resolve: (1) whether M.S. should be placed at Perkins and (2) the proper award of attorneys’
fees.
Following remand from the Tenth Circuit, USDB filed a motion for summary judgment
on the placement issue. In response, Plaintiff filed a Rule 56(d) motion, which the Court granted.
Later, Defendant filed a motion to end Plaintiff’s Rule 56(d) discovery and provide a deadline
for Plaintiff to respond to its summary judgement motion. Plaintiff did not oppose this motion.
Plaintiff then filed a notice withdrawing her claim that M.S. should be placed at Perkins.
Plaintiff alleged that, on consulting with her expert witness, the expert explained that she could
no longer opine that M.S., now 20 years old, would benefit from placement at Perkins, given her
advanced age.
Upon Plaintiff’s withdrawal of the Perkins claim, USDB withdrew its pending motion for
summary judgment, leaving only the issue of attorneys’ fees for the Court to resolve. The parties
submitted briefing on their respective arguments for the proper amount of attorneys’ fees to be
awarded to Plaintiff in light of the Tenth Circuit’s decision.
II. DISCUSSION
The IDEA provides that a court may award reasonable attorneys’ fees “to a prevailing
party who is the parent of a child with a disability.” 1 “[T]he level of a plaintiff’s success is
relevant to the amount of fees to be awarded.” 2 “Where the plaintiff has failed to prevail on a
claim that is distinct in all respect from his successful claims, the hours spent on the unsuccessful

1

20 U.S.C. § 1415(i)(3)(B)(i)(I).

2

Hensley v. Eckerhart, 461 U.S. 424, 430 (1983).

4

claim should be excluded in considering the amount of a reasonable fee.” 3 “There is no precise
rule or formula for making these determinations. The district court may attempt to identify
specific hours that should be eliminated, or it may simply reduce the award to account for the
limited success. The court necessarily has discretion in making this equitable judgment.” 4
However, the Supreme Court has warned that courts must take certain considerations into
account. 5
The Court originally awarded 30 percent of the fees associated with the due process
hearing and 40 percent of the fees incurred in association with the federal court proceedings.
These percentages roughly correlated to the fraction of claims on which Plaintiff was successful.
On appeal, the Tenth Circuit vacated the fee order and remanded for further consideration
holding, “[w]hether J.S. ultimately prevails on her claim that M.S. should be placed at Perkins is
highly relevant to the question of the level of success she obtained.” 6 However, in remanding the
fee award determination, the Tenth Circuit noted that the “purely mechanical analysis of an
appropriate fee award, which appears to allow fees in proportion to the number of claims upon
which J.S. prevailed is at odds with governing precedent.” 7 Quoting Hensley v. Eckerhardt, the
Tenth Circuit explained:
In cases where a plaintiff’s claims for relief involve a common core of facts or are
based on related legal theories[,] “much of counsel’s time will be devoted
generally to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series
3

Id. at 440.

4

Id. at 436–37.

5

Id. at 437.

6

M.S. ex rel. J.S. v. Utah Sch. for Deaf & Blind, 822 F.3d 1128, 1137 (10th Cir. 2016).

7

Id.

5

of discrete claims. Instead the district court should focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours reasonably expended
on the litigation.” 8
Though the Circuit Court left the ultimate determination to this Court, it advised that “the
IDEA claims at issue in this case do not appear to be ‘unrelated’ as that term is defined in
Hensley.” 9 And further instructed,
On remand the district court must first resolve whether some of the claims raised
in J.S.’s federal-court complaint were unrelated. If J.S. lost on claims that were
unrelated to the claims on which she succeeded, then no fee may be awarded for
counsel’s services on the unsuccessful claims. If, on the other hand, the district
court concludes all claims raised in J.S.’s suit are related, it must consider the
significance of the overall relief obtained by J.S. in relation to the hours
reasonably expended on the litigation. 10
Plaintiff argues she should be awarded all fees associated with the administrative, district,
and appellate proceedings because each of Plaintiff’s claims are related and she achieved
significant success. Plaintiff further argues she should be awarded fees for the time her attorney
spent in IEP meetings.
USDB argues Plaintiff should be awarded minimal attorneys’ fees because Plaintiff’s
unsuccessful claims are wholly unrelated to Plaintiff’s successful claims and Plaintiff was not
successful on her claim that M.S. should be placed at Perkins. Defendant further requests that, to
the extent Plaintiff is awarded attorneys’ fees, those fees should be reduced in accordance with
the time expended by Defendant in unnecessary proceedings.

8

Id. at 1137–38 (quoting Hensley, 461 U.S. at 435).

9

Id. at 1138.

10

Id. (internal citations and quotation marks omitted).

6

a. Plaintiff is the prevailing party
Under the IDEA, “the parents prevail ‘when actual relief on the merits of [the child’s]
claim materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.’” 11 That Plaintiff was the prevailing party at
both the administrative and district levels does not appear to be in dispute. M.S. may not have
achieved every desired result, but both the administrative hearing officer and this Court issued
orders that materially altered M.S.’s placement at USDB. M.S. therefore is the prevailing party
and is entitled to an award of attorneys’ fees.
b. Plaintiff’s successful claims are related to her unsuccessful claims
The Court must next determine if the claims on which M.S. prevailed are “unrelated” to
the claims on which Plaintiff was not successful. If the unsuccessful claims are unrelated to the
successful claims, “the hours spent on the unsuccessful claim[s] should be excluded in
considering the amount of a reasonable fee.” 12 Claims are unrelated if they are “distinctly
different claims for relief that are based on different facts and legal theories.” 13 The Court in
Hensley noted that “[i]t may well be that cases involving such unrelated claims are unlikely to
arise with great frequency” 14
Regarding M.S.’s five procedural claims, each claim makes the same general allegation:
that USDB denied M.S. a FAPE by failing to notify and/or consult with either J.S. or the IEP
11

Miller ex rel. S.M. v. Bd. Of Educ. of the Albuquerque Pub. Sch., 565 F.3d 1232, 1247
(10th Cir. 2009) (quoting Urban by Urban v. Jefferson Cty. Sch. Dist. R-1, 89 F.3d 720, 729
(10th Cir. 1996)).
12

Hensley, 461 U.S. at 440.

13

Id. at 434.

14

Id. at 435.

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team before making a change to the IEP or the implementation of the IEP. The overlap in fact
and law between the successful claim and the unsuccessful claims is, therefore, significant. The
IDEA grants parents the rights to,
(1) examine all records relating to their child; (2) participate in the IEP
preparation process; (3) obtain an independent evaluation of their child; (4)
receive notice before an amendment to an IEP is either proposed or refused; (5)
take membership in any group that makes decisions about the educational
placement of their child; and (6) receive formal notice of their rights under the
IDEA. 15
To recover for a procedural violation, a plaintiff must first show that one of the above-listed
violations occurred. If the plaintiff is able to prove the violation occurred, it must additionally
show that the violation (1) impeded the student’s right to a FAPE; (2) significantly impeded the
parent’s opportunity to participate in the decision-making process regarding the provision of a
FAPE to the student; or (3) caused a deprivation of educational benefit. 16
Each of Plaintiff’s procedural claims would involve an analysis under the above-stated
law. Further, each procedural claim would involve facts and arguments regarding M.S.’s
educational needs and the significance of USDB’s alleged failure to meet those needs. Therefore,
though Plaintiff was successful on only one of these claims—that USDB’s discontinuance of the
FM system without the approval of the IEP and without noticing J.S. denied M.S. a FAPE—this
one successful claim involves the same general facts and legal issues as each of the unsuccessful
claims.

15

Ellenberg ex rel. S.E. v. N.M. Military Inst., 478 F.3d 1262, 1269 (10th Cir. 2007)
(internal citations omitted).
16

20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2).

8

Plaintiff’s unsuccessful substantive claims also share a common core of facts and/or
related legal theories with her successful claims. Plaintiff was unsuccessful in her claims that
M.S.’s IEPs for the 2010-2011, 2011-2012, and 2012-2013 school years were inappropriate or
not reasonably calculated to provide M.S. with a FAPE. Plaintiff was also unsuccessful in
proving that USDB failed to properly implement M.S.’s IEP for the 2010-2011 school year.
Finally, although M.S. was successful at the appellate level in remanding the issue of placement
at Perkins, Plaintiff ultimately withdrew this claim and was, therefore, unsuccessful. The
analyses of each of these unsuccessful claims generally involves facts related to M.S.’s
educational needs, which were largely unchanged throughout the three school years at issue, and
USDB’s alleged failure to meet those needs, via either the construction of the IEP or the
implementation of the IEP. An analysis of the majority of Plaintiff’s successful claims involves
those same general facts. Thus, the Court finds that each of Plaintiff’s unsuccessful claims are
related to Plaintiff’s successful claims.
USDB disagrees. In support of its argument, USDB cites to a number of IDEA cases in
which a district court reduced an attorneys’ fees award. 17 In Platt v. District of Columbia 18 the
District Court for the District of Columbia found the plaintiff’s unsuccessful claim regarding an
IEP purportedly issued in 2009 was unrelated to the plaintiff’s successful claims relating to the
student’s IEPs for the school years between 2011 and 2013. However, the facts in Platt are
easily distinguishable from those in the case at hand. The hearing officer’s analysis regarding the
17

USDB cited to Dicks v. D.C., 109 F. Supp. 3d 126, 133 (D.D.C. 2015) and Joaquin v.
Friendship Public Charter Sch., 188 F. Supp. 3d 1, 11 (D.D.C. 2016), in addition to the two
cases discussed. However, these cases do not include a finding that the unsuccessful and
successful claims were unrelated and are, therefore, irrelevant to this discussion.
18

168 F. Supp. 3d 253 (D.D.C. 2016).

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unsuccessful claim in Platt involved determining whether the 2009 IEP ever took place and
whether the student was receiving any special education services at the time in question. There
was also of question of timeliness. The hearing officer found that the record did not support that
the student was receiving special education services under the IDEA in 2009 and that no IEP was
in place. The hearing officer further found the claim to be untimely. Therefore, a substantive
analysis of the purported IEP never took place. The district court ultimately found that the 2009
IEP claim “concerned a different time period and implicated different legal questions, such as
whether Plaintiff’s claim was barred by the applicable statute of limitations.” 19 Such is not true
here. There are no unsuccessful claims that involve legal analyses or facts completely unrelated
to a successful claim. Each unsuccessful claim involved a substantive analysis of one of three
IEPs, which, as discussed, relied on a common core of facts with Plaintiff’s successful claims.
Defendant also cites to L.P. v Longmeadow Public Schools. 20 In L.P., the District Court
for the District of Massachusetts parsed attorneys’ fees upon finding that the FAPE claims and
IEP implementation claims were unrelated.
FAPE issues focus on whether the services, goals, and other specifications set
forth in an IEP were appropriate, given the student’s needs. In contrast,
implementation focuses simply on whether the services proposed in an IEP have
actually been provided. In other words, FAPE issues involve what should have
been done, implementation issues involve what actually was done. 21
The court ultimately held that it was “hard-pressed to imagine the facts and
circumstances that render the legal tasks associated with these very different analyses completely
indistinguishable.” The L.P. court also found that the plaintiff made no “attempt to specify the
19

Id. at 263.

20

CIV.A. 10-40190-FDS, 2012 WL 5200078 (D. Mass. Oct. 18, 2012).

21

Id. at *5.

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core facts involved in the case,” nor did the plaintiff specify which issues they claimed were “so
intertwined with the issue of implementation as to be inextricable.” 22
Here, it would not be practical for Plaintiff to bring separate suits against USDB for its
alleged failures in design and implementation. To properly analyze the implementation of the
IEP, it is necessary to understand the facts about the underlying IEP and the student’s particular
educational needs. Therefore, the Court does not agree that the facts and arguments relating to
the design of the IEP are wholly distinguishable from those relating to the implementation of an
IEP. Though there may be circumstances where the two analyses are not interrelated, such is not
the case here.
In light of the Court’s finding that Plaintiff’s successful and unsuccessful claims are
related, the Court will include the time spent on all claims in calculating the lodestar amount.
c. The lodestar amount
The Court must next determine the lodestar amount of Plaintiff’s attorneys’ fees. 23
Plaintiff requests $280,766.70 in attorneys’ fees. This amount appears to be a combination of the
full amount of fees originally requested for the administrative and district proceedings, including
fees for attendance of several IEP meetings, and the fees incurred in the appellate proceedings.
Plaintiff requests attorneys’ fees associated with the February 2013, February 2014, and
April 2014 IEP meetings. In its prior Order, the Court held that Plaintiff was not entitled to
attorneys’ fees relating to these meetings. This decision was a not appealed to the Tenth Circuit,
22

Id. at *4.

23

Attorneys’ fees requests under the IDEA are determined using the lodestar method.
Relying on the lodestar method, “the fee applicant bears the burden of establishing entitlement to
an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S.
at 437.

11

nor was it remanded and will therefore not be reconsidered. Further, Plaintiff has failed to
convince the Court that its earlier decision was incorrect.
Plaintiff requests $20,627.50 in fees associated with the appellate proceedings. “[A]
‘prevailing party’ is not automatically entitled to an award of appeal-related attorneys’ fees.” 24
“Absent an explicit provision, in order for [the Tenth Circuit] to properly exercise [their]
discretion, an application for appeal-related attorneys’ fees must first be made to [the Tenth
Circuit].” 25 Upon request, the Tenth Circuit may determine an award of appellate-related fees is
appropriate and “may then remand to the district court to determine an award of reasonable
fees.” 26 Plaintiff did not first request an award of attorneys’ fees for the appellate proceedings
from the Tenth Circuit. Thus, the Court does not have jurisdiction to award attorneys’ fees
associated with the appeal.
In light of the above, the maximum amount M.S. would otherwise be entitled to as the
prevailing party is $231,490.25. Because M.S. only prevailed on a limited number of her claims,
the Court must now consider the reasonableness of the requested fee.
d. Plaintiff achieved limited success
If . . . a plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate
may be an excessive amount. This will be true even where the plaintiff’s claims
were interrelated, nonfrivolous, and raised in good faith. Congress has not
authorized an award of fees whenever it was reasonable for a plaintiff to bring a
24

Hoyt v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993).

25

Id.

26

Id.; see also R. M-G. v. Bd. of Educ. for the Las Vegas City Sch., 645 F. App’x 672,
678 (10th Cir. 2016) (“Finally, because Parent may be entitled to recover attorney fees for
prevailing on appeal, we remand for the district court to determine whether such fees are
warranted, and if so, the amount of those fees.”).

12

lawsuit or whenever conscientious counsel tried the case with devotion and skill.
Again, the most critical factor is the degree of success obtained. 27
“[T]he district court must make a qualitative assessment to determine what less-thanperfect results are ‘excellent,’ justifying full recovery, or to what extent plaintiffs’ ‘limited
success’ should effect a reduction in the lodestar. ‘There is no precise rule or formula’ for
making such determinations.” 28
Plaintiff argues she received substantial and significant relief on all her claims because
“[t]he central contention of Plaintiff’s claims was Defendant’s failure to properly identify M.S.
as dual sensory impaired (deafblind), Defendant failing to utilize dual sensory loss strategies, and
that Defendant denied M.S. FAPE.” 29 Conversely, Defendant argues Plaintiff’s relief was
minimal because her main goal with bringing the litigation was to be placed at Perkins.
Defendant cites to the Tenth Circuit’s decision stating,
Whether J.S. ultimately prevails on her claim that M.S. should be placed at
Perkins is highly relevant to the question of the level of success she obtained. For
instance, in urging this court to affirm the district court’s limited award of fees,
USDB argues J.S.’s real purpose in bringing this suit was to have M.S. placed at
Perkins and that her failure to obtain that relief demonstrates the limited success
she achieved. 30
M.S.’s placement at Perkins has undoubtedly been a central issue in this case. At the
administrative, district, and appellate courts, Plaintiff argued that USDB lacks the ability to
provide M.S. with a FAPE and, accordingly, USDB must bear the cost of placing M.S. at

27

Hensley, 461 U.S. at 436.

28

Jane L. v. Bangerter, 61 F.3d 1505, 1511 (10th Cir. 1995) (quoting Hensley, 461 U.S.

at 436).
29

Docket No. 137, at 7.

30

M.S. ex rel. J.S., 822 F.3d at 1137.

13

Perkins. 31 Therefore, that M.S. was not ultimately placed at Perkins justifies a significant
reduction of the lodestar amount. However, as stated by the Tenth Circuit, “even apart from the
issue of M.S.’s potential placement at Perkins, J.S. obtained substantial and significant relief.” 32
The Court found that M.S.’s dual sensory impairment must be considered in all future
IEPs, that M.S. need be “enrolled in a classroom at a residential program with a teacher and staff
who specialize in teaching dual sensory-impaired children,” that M.S. be provided with “a total
communication approach that requires instructors to simultaneously voice, use tactile signs, and
use gestures as well as a voice output device and object choice board.” 33 The Court further
ordered that M.S. receive one and a half years of compensatory education at USDB’s expense.
Plaintiff also succeeded in her claim regarding M.S.’s placement at Provo School District and
received reimbursement for the expenses incurred from the Perkins IEE.
Despite not succeeding on the Perkins claim, Plaintiff received much of the relief she
sought in regards to USDB’s treatment of M.S. Accordingly, the Court will award Plaintiff 70
percent of the lodestar amount.
e. Plaintiff’s withdrawal of the Perkins claim does not merit a reduction in fees
The IDEA provides that the Court shall reduce the amount of attorneys’ fees awarded to a
prevailing plaintiff where “the parent, or the parent’s attorney, during the course of the action or
proceeding, unreasonably protracted the final resolution of the controversy.” 34 USDB argues the

31

See Docket No. 136, at 8–10 (collecting statements).

32

M.S. ex. rel. J.S., 822 F.3d at 1138.

33

Docket No. 44, at 51.

34

20 U.S.C.A. § 1415(i)(3)(F)(i).

14

Court should reduce Plaintiff’s fees because “Plaintiff and her counsel waited to the very end
(after Rule 56(d) discovery expired) to capitulate on her Perkins placement demand.” 35
The Court does not find support in the record for a reduction in fees. Plaintiff alleges that
upon consult with her expert witness, she discovered that the expert could no longer opine that
M.S. would benefit from placement at Perkins given M.S.’s advanced age. USDB has not argued
that Plaintiff chose to withhold this information for a significant amount of time for the purpose
of protracting litigation. UDSB has also not alleged what motivation Plaintiff would have in
prolonging litigation. Without evidence supporting that Plaintiff unreasonably prolonged
litigation, a reduction of attorneys’ fees is not warranted.
III. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Attorney Fees and Supporting Memorandum
(Docket No. 137) is GRANTED IN PART AND DENIED IN PART. It is further ORDERED
that Defendant’s Motion for Attorney Fees (Docket No. 136) is DENIED. Plaintiff shall be
awarded attorneys’ fees in the amount of $162,043.18.
DATED this 26th day of December, 2017.
BY THE COURT:

Ted Stewart
United States District Judge

35

Docket No. 136, at 14.

15