A1 Procurement, LLC. et al v. Thermcor, Inc. et al

Filing 190

OPINION AND FINAL ORDER - This court, having examined the Relator's Objections to the Magistrate Judge's R&R, and having made de novo findings with respect thereto, does hereby OVERRULE the Objections and ADOPT the R&R in full. Accordingly, as requested in the Defendants' Combined Motion, ECF No. 155 , summary judgment is GRANTED in favor of the Defendants, and the Relator's Motion, ECF No. 158 , is DENIED. Copies distributed to counsel for the parties. Signed by Chief District Judge Rebecca Beach Smith on 7/5/2017. (cchr)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division A1 PROCUREMENT, LLC, Relator, ACTION NO: V. THERMCOR, INC., 2:15cvl5 et a l . . Defendants. OPINION AND On November 3, Complaint District the Relator filed its original qui tarn in the United States District of Defendants Business 2011, FINAL ORDER Florida. made ECF No. 1. false ("SBA") Veteran-Owned Small Business" ("Amended and about alleges claims their ("SDVOSB") the Southern to that the the Small "Service-Disabled status. Id^ ft 51-67. the Relator filed its First Amended Complaint Complaint"), Defendants' for Complaint statements Administration On May 21, 2014, The Court which in involvement added SBA's the allegations relating to 8(a) Minority Sole-Source Southern District of Program. ECF No. 25, HH 65-86. I. On January transferred No. 57. Combined On 15, venue to September Motion ("Defendants' 2015, the 26, to Combined the Eastern 2016, Dismiss District Thermcor and Motion"). of filed for ECF Florida Virginia. the Defendants' Summary No. ECF Judgment 155. On October 10, 2016, ("Relator's the Opposition October 17, 2016, Reply"), LLC, 159. ECF filed Motion") filed a Memorandum in Opposition Response"). ECF No. the Defendants filed their Reply No. 169. On September its Motion for 29, 2016, Opposition 14, 20, 2016, the Defendants filed the Procurement, Relator filed its ("Relator's ECF Nos. a Opposition Response"). On ("Defendants' Partial Summary Judgment 2016, ("Defendants' 164. A1 and accompanying Memorandum in Support. On October October Relator 158, Memorandum ECF No. Reply 168. in On ("Relator's Reply"). ECF No. 170. On October 21, 2016, this court referred the above motions to United States Magistrate Judge Douglas E. Miller, the provisions of Civil 28 U.S.C. Procedure hearings, undersigned district applicable, and ECF November 2, ECF No. Magistrate Defendants' conduct necessary, judge 171. 2016, 183. A before The Judge dismiss the case. on recommended Combined to the the Motion, Judge April 4, that deny the the fact, of to if disposition Motions 2017. court a ECF grant Relator's R&R at 2. By copy of the R&R, was of held the on See Transcript, issued the including submit the Magistrate Judge. Magistrate ("R&R") on hearings, findings for hearing and Federal Rule of and proposed recommendations No. Recommendation if 636(b) (1) (B) to 72(b), evidentiary Motions. § pursuant to Report and No. 186. The in part the Motion, and the parties were advised of to the findings and recommendations made by the Magistrate Judge. The Relator filed Defendants May 2, their a to the R&R to which objected. or modify, Fed. to Rule 72 (b) objections 2017. ECF Objections No. 187. The ("Response") on shall the Federal review the Rules record in of its Civil entirety, novo determinations of those portions of the the R. Parties Civ. Judge, instructions. 18, the of P. have 72(b). in whole or in part, Magistrate written 189. court and shall make ^ file on April Response ECF No. Pursuant Procedure, to Objections filed 2017. right or and properly The court may accept, reject, the recommendations made by the recommit 28 U.S.C. specifically the matter to him with § 636(b)(1). II. Additionally, Statement of on April 26, Interest. ECF No. 2017, the United States filed a 188. The United States did not seek leave of court prior to filing its Statement of Interest. Under any Local Civil Rule communications beyond those filed first without 7(F), specified obtaining leave briefs in of the or rule Court." written may not The "be Defendants have asked that this court construe part of their Response as a Motion to Strike the Statement of Interest. Resp. Regardless of how the Statement of at 1, Interest n.l. should be construed—as an amicus curiae submission or as an objection to the R&R—it is arguably untimely. provide, and authority, Rules Appellate curiae could Procedure submissions. Consulting LLP, sub nom. court not locate, any controlling district courts have looked to Rule 29 of the Federal of amicus the Although the parties did not U.S. See guidance U.S. ex 512 F. Supp. 2d 920, 927 ex rel. 2008 WL 3244000 for Gudur v. (5th Cir. Deloitte Aug. 7, on rel. timeliness Gudur (S.D. Tex. & Touche, 2008) . Rule v. of Deloitte 2007), aff'd No. 07-20414, 29 provides that an amicus curiae submission must be filed "no later than 7 days after the filed." Fed. Relator's the principal time R. brief App. P. Objections April 25, 2017. the 29(a)(6). to be for an amicus of a curiae the being supported is court considered the brief under submission would have that rule, expired on If the court considers the Statement of Interest i t would have been due issued, on April 18, However, If principal to be akin to an objection to because party the R&R, it is also untimely, fourteen days after the R&R was 2017. the Statement of Interest is not a typical filing. It was not filed by a formal party and it "takes no position as to the overall merits of the case." Statement of Interest at 2. These distinctions cast some doubt on the applicability of rules that were designed to deal with other types of courts have analogized filings in the past, the similar court statements is hesitant to filings. more to strike a While typical filing without clear Accordingly, guidance the court from will controlling consider the legal authority. Statement of Interest as if it were an amicus curiae submission in reviewing the R&R, and exercises its discretion to extend the one day. As such, the court DENIES the filing deadline by Defendant's Motion to Strike. III. The SBA administers two programs that are relevant to this case. One is the SDVOSB Set-Aside Program and the other is the 8(a) Business Development between the materials years to of the 2007 SBA Program.^ The Relator alleges and 2015, containing the false Defendants that, submitted certifications that misrepresented Thermcor's eligibility for those two programs. While Thermcor SDVOSB program, 8(a) 8(a) any The that 8(a) are program owned by a is contracts is C.F.R. for "early graduation" designed disadvantaged tasked with §§ 124.101, admission into determining 124.112, the 8 (a) and 8(a) the to aid small individual. compliance. The and while it termination processes, 124.301-04. program, under contract bids under the regulatory scheme sets out various conditions, provides SBA obtained it did make successful program. businesses never See, e.g., the 13 Even after being granted participants continue to make ^ For a more detailed explanation of the factual background, see the R&R a t 2-16. annual "[s]ubmissions C.F.R. § 124.112(b). nine-year term supporting If limit, an is or obtain 8(a) 8(a) "early from the program by the SBA, set-aside continued eligibility." participant graduated," 13 reaches or is the terminated it is no longer eligible to bid on contracts, "is obligated § 124.304. All the contracts that Thermcor obtained through the in claims contracts." for payment 13 to previously program resulted 8(a) it complete 8 (a) awarded but C.F.R. "made directly to the government agencies who solicited the work," and not the SBA itself. The Act or Fourth Circuit ("FCA") liability: fraudulent the course requisite has summarized "(1) of scienter; the test for whether there was a conduct; (3) (2) that made was or False false statement carried material; and out with (4) that caused the government to pay out or to forfeit moneys due that involved River Co. , Harrison 176 I, defendant's conditions at a F.3d 776, the false in 'claim')." Harrison 788 plaintiff (4th Cir. brought certification order to v. an "that induce the Westinghouse 1999) it Claims (i.e., Savannah ("Harrison I"). FCA claim based In on a had complied with the government benefit." Id. 786. The express Supreme false theory can be Court recently certifications, a basis for "the held that, implied liability" under in false the addition to certification FCA. Universal Health Servs., (2016) Inc. v. United States, 136 S. Liability may attach under the FCA: Ct. (1) 1989, 2001 if a defendant submits a claim for payment with specific representations about the goods or services noncompliance requirement; renders with (2) its a provided, statutory, such that the representations misrepresentation is decision. Id. relevant knowingly violated material to The the a and not regulatory, omission of to the question requirement is that the noncompliance and "whether (3) the defendant decision." its contractual government's the payment disclose or misleading; material Government's does the payment defendant knows Id. is at 1996. This materiality requirement is "rigorous." Id. A "claim" under the FCA "includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds programs." I ^ (citing 31 U.S.C. "knowingly" means information, ' falsity of the truth "that a 'acts the or in deliberate of ^ But see Harrison I, or the federal § 3729 (b)(2)(A)). person has information,' falsity under *actual ignorance 'acts benefits "Knowing" or knowledge of the of truth the or in reckless disregard of information.'" 176 F.3d at 787 n.8 Id. (quoting (Fourth Circuit previously stated that, under the FCA, the permissibility of an implied false certification claim was "questionable"); U.S. ex rel. Herrera v. Danka Office Imaging Co., 91 F. App'x 862, 864 (4th Cir. 2004). § 3729(b)(1)(A)). to influence, "Material" or be means capable "'having of vehicle for regulatory the is minor Id. at scope payment and breaches or It is option to decline not "a contract of is or insufficient noncompliance," or despite were in 2003. the However, full requirements limited defendant's "noncompliance in Id. would have the materiality. is the tendency (quoting § 3729(b)(4)). garden-variety violations." of claim FCA punishing Government knew the natural influencing, receipt of money or property.'" Id. Importantly, a insubstantial," to pay and, there "that if if can it the be no "if the Government pays a particular its violated, actual that is knowledge very that strong certain evidence that those requirements are not material." Id. at 2003-04. IV. The Magistrate Judge concluded that, the light falls most outside receive favorable the payments certifications, goods scope to of the or services Relator, FCA liability on any SDVOSB whether viewing the false contracts, or provided to not, facts "Thermcor's in conduct because it and eligibility did not the Government." its did relate R&R at not to the 19. The Magistrate Judge further concluded that "the certifications were not otherwise material claims Thermcor recommended that made the to . the . court Government's . ." grant Id. in decision to pay the The part Magistrate the Judge Defendants' Combined Motion and deny the Relator's Motion, because "the undisputed facts show that Thermcor is entitled to judgment as a matter of law." the R&R. Id. The Relator has filed four (4) objections to The court will address the objections in turn. A. First Objection The Relator's applicability Relator that of objects the that fraudulent application[s] first objection involves FCA to "[t]he circumstances Magistrate statements submitted the to the threshold-level Judge at erred on applications gain eligibility hand. in holding and to The renewal government set-aside programs are not actionable under the FCA." Obj. at 2. This objection is meritless. The court finds it necessary to point out that the Magistrate Judge did not make that finding. The Magistrate circumstances, 8(a) Judge did, however, conclude that under these the allegedly false statements made on Thermcor's renewal applications are not actionable under the FCA. See R&R at 37-46. The court agrees with the Magistrate Judge. The Relator argues regulatory compliance that those the FCA. allegedly Obj. at 5-6. fact that Thermcor's were made to contracting the that to false As is SBA in expressly its are certified its submissions, 8(a) certifications and actionable under the Magistrate Judge pointed out, express SBA and agencies the Thermcor not certifications the Navy, significant. of Coast See 8(a) Guard, R&R at the compliance or 32. other The Defendants did not seek payment from the SBA, submissions to Magistrate the Judge's applications accurate. were The SBA were not statement "not only that claims "claims claims for Thermcor's for for and, payment," payment" were thus, their payment. annual The renewal R&R at 39, the claims payment that Thermcor submitted to contracting agencies, is for and it is those claims that are theoretically actionable under the FCA. That is always not to outside Relator's say the that false scope Objections, of the eligibility the FCA, certifications and, Magistrate contrary Judge made to no are the such assertion.^ The through various citations to cases that are not binding on this court, and most of Relator which were Thermcor's false FCA. at Obj . theorizes for the that, repeatedly considered statements 3-5; see by to the the obtained Magistrate SBA generally because 8(a) contracts emphasizes, are R&R at Judge, actionable 31-40. The transitively, false the Relator program participation was required by Thermcor, any false Thermcor made to the SBA in pursuit of remaining 8 (a) are, under that statements made on future statements certified claims for ^ Although, if the Defendants had never actually obtained or performed an 8(a) contract, and thus never made a claim payment, as was the case with the SDVOSB contracts, see at 35, none of their actionable under the submissions FCA. 10 to the SBA could have for R&R been payment. analogy However, do not common sense. said it was. Relator's persuade the efforts court to Thermcor was an 8(a) Certification, participation decisions the in that the cannot be Although the revoked payment on 8(a) with contracts, its and notions of and, consequently, are by the general discretionary Relator's SBA competing regulatory scheme requires. Relator argues fraud-in-the-inducement reject program, interpretation of what the 8(a) wordsmithing participant because the SBA renewal, 8(a) at that it respect to pled facts Thermcor's Obj . at 5 n.3, supporting claims for the court agrees with the Magistrate Judge that the Relator did not adequately plead a fraud-in-the-inducement theory of liability. Simply using the word insufficient. Never allege concerning Further, facts while submission that year's by the in "induce" the Amended appears "induced contracts," its Obj. at Amended Complaint Thermcor's Relator Thermcor in See R&R at 33 n.l4. initial to the argue does status is one of inertia; graduation. renewal Even if submissions, Thermcor there is that each renewal to into A company's i t continues until termination or had no failed permissible pattern 11 entirely indication On the contrary, "a enter the Relator provides no automatically terminated. following Relator eligibility. explanation or timeline to support that assertion. 8(a) the is 8(a) government 5 n.3, Complaint of that to make it would its be while termination is failure to make required submissions," it participant's contract, not mandatory. Accordingly, § 124.303(a)(7). is describing annual simply SBA submissions because documentation each year, the is a See 13 each as a of new regulations C.F.R. an inducement require logical stretch. 8(a) to updated The court has no basis to find that various contracting agencies might have been induced to contract with Thermcor because of renewal submissions, and the court is the contents of not persuaded by its the Relator's "continuing inducement" argument. The Relator also argues that, for payment itself as under 8 (a) participant. stated, 8(a) contracts, compliant See in making its ultimate claims Obj . at by Thermcor representing 4-6. But, as the only way to define an 8 (a) reference to regulatory the certification scheme. R&R at 39. impliedly itself the outlined certification great deal of discretion. an business business is a program. Thermcor participated Thermcor was business, involving a when, no an 8(a) "false its in business. statement call on the U.S. in making that the 8(a) claims Thermcor made in for in the the Therefore, was a 8 (a) an 8(a) transaction 176 F.3d at 788, payment Thermcor represented itself as an 8(a) participant. 12 Judge procedures in program. fisc," Harrison I, ultimate 8 (a) Quite simply, participates Because [was] an certified business is by provide the SBA with a 8 (a) as Magistrate procedures Those certified on contracts, Further, contracting agencies that work with the 8(a) set-aside program limit their contracts to those businesses that are 8(a) the certified, SBA itself program to See C.F.R. 13 terminate eligibility); individual 8(a) ED does those an not not that that § 124.303 (a)(2) 8 (a) cf. program of C.F.R. of a 8(a) compliant. limit are the strictly (indicating business 13 are necessarily businesses on behalf appearance those if § it business participation has the SBA concern to not (emphasis compliant. "may" maintain right or set-aside the to ("Any whether eligibility.") 8(a) that fails 124.201 8 (a) Indeed, its or apply there any for an Unless added). is a contracting entity could engage in its own determination of 8(a) compliance, 8(a) eligibility to compliance, bid on 8(a) in of itself, contracts. Cf. (explaining that the SBA determines 8 (a) is 13 irrelevant C.F.R. to § 124.507 eligibility) . Thermcor did not make false statements when it represented itself as 8 (a) certified in making its claims fact an 8(a) participant at for payment, all relevant because it was times. The in court OVERRULES the Relator's first objection. B. Second Objection The Relator's second objection deals with materiality. Relator argues, a claim for The not only was there fraudulent conduct related to payment, but also that the fraudulent material to the government's payment decision. 13 Obj. conduct was at 7-8. The Relator asserts that "the alleged false statements were material despite Thermcor's continued enrollment in the 8(a) program while being investigated." Id. at 6. The Relator argues that the Magistrate Judge's comment that "false statements had *no bearing services Thermcor performed' immateriality." Id. the R&R, . . on the actual ship-repair . does not support a finding of (quoting R&R at 40) . First, in that part of the Magistrate Judge simply listed two types of false statements as "example[s]" of issues that "had no bearing on the actual ship-repair services Thermcor Second, it is true that any false statements had no such impact, and i t matters that they did not, likely be material. Moreover, performed." because otherwise, because applications were not claims for payment, protests to the contrary, SBA were material question. property the 8(a) at 40. they would 8(a) renewal despite the Relator's statements certification is to the the wrong The correct question is whether Thermcor's statements to the SBA were material payment, the whether Thermcor's to the SBA's R&R in connection which it made SBA. The to the payment or receipt of money or with Thermcor's actual statements "would not for to various contracting agencies and not made by Thermcor on applications were not "so central" to the 8 (a) government claims have paid 14 these claims the 8(a) renewal program that the had it known" of the at statements. Universal Health Health Servs., Services, Inc., 136 S. Ct. 2004. In Universal received Medicaid reimbursements services, despite the facts a for that its "few actually licensed to provide mental supervision of them was minimal." professionals was properly requirements who who patients. Id. payment treated licensed." to employees used had the In its codes Additionally, Medicaid employees were patient, treatment treatment one regulatory (23) facility services submissions, employees "only "despite provided different facility treatment twenty-three reimbursement for health at 1997. Of five different Moreover, licenses facility- [facility] Id. contrary," lacked mental health health counseling and that one Id. mental the to facility services. "misrepresented Id. their qualifications and licensing status to the Federal Government to obtain National submitted in correspond Provider connection to Massachusetts specific Identification with job investigated Medicaid titles." the numbers, which claims reimbursement Id. Following facility, and are and complaints, the facility "agreed to a remedial plan." Id. Universal claims is for Health payment legally submitted by did "not implicitly represent entitled the Services to facility payment." in that 15 resolve that the whether all billing party Id. at 2000. The claims case did "more than merely demand payment" and "omitt[ed] rendering held them "actionable critical qualifying information," misrepresentations." Id. The Court that the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant's failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths. Id. at 2001. violation The of Court an also express held that condition of "not every payment undisclosed automatically triggers liability." Id. Recently, Fourth FCA Circuit claim" in found where ensure all its United States that Triple "the v. Government Canopy employees Triple was Canopy, Inc., properly an required contractually alleged to had satisfactorily completed a States Army qualification course, but used "guards 175 (4th Cir. documents instead noncompliance. unqualified Id. 2017). of the Government of its Triple Canopy billed the Government for the employees. Id. Health "specific representation" no 857 F.3d Triple Canopy falsified qualification informing Universal "contained United from Uganda who were unable to meet this marksmanship requirement." 174, the at Services, falsities Unlike the defendant Canopy did not invoices, and the invoices at 178. However, Triple in on 176. its their 16 face." Id. make in a Triple Canopy did request payment from the Government for employees that i t knew were unqualified under the contract. Unlike "guns that do not shoot" or "guards that cannot Id. shoot straight," id. at 179, any false statements made by Thermcor had no impact on the services i t provided. The Relator asserts that the Magistrate Judge's statement that "the SBA was aware of the conduct and consistently retained Thermcor in the 8(a) R&R at 41) further (internal argues statements. belied by that the Thermcor's Yet, to Thermcor itself omitted). not the Intent to aware Relator's on noted (quoting The of Relator any false assertions Early Graduate" are ("Letter") February 10, 2016. that requirements subject the the 8(a) status of the SBA's SBA did the status Letter set-aside contracts, Obj. not 8(a) in the false at awareness had could of repeated application." Thermcor from its was However, Relator renewal certification 8(a) sent the non-compliance, maintain 7. SBA eligibility despite terminate the marks Obj . at 7 ECF "clearly Thermcor was not in compliance with the net worth affiliate were quotation "Letter of The stated th[at] which at SBA No. 159-18. and that Id. the program" was incorrect. fact program. even program, statements (emphasis added). of this apparent "early graduate" or Allowing Thermcor to allowed as its it to continued obtain despite the SBA's knowledge of a 17 on 9 significance, have 8(a) new lack of compliance (indicating with that the regulatory ineligibility to scheme. obtain See Letter new 8(a) at 1-3 contracts begins on the date of early graduation). The Relator substituted the judgment of the set-aside of 8(a) further conclusion of the that "the SBA's under certification must Section 8(a), by mean the SBA the is SBA Otherwise, senseless to require SBA certification for 8(a) say, Judge for the in order to obtain there and something. Magistrate investigation [c]ourt." Obj. at 8. However, contracts "certification" objects a requirement alone. it This would be companies while, permitting self-certification for other small disadvantaged businesses.'* Because the SBA has discretion both in certifying and graduating or terminating determine, the through regulatory simple scheme, 8(a) companies, application of whether one the court cannot interpretation of misrepresentations by Thermcor ^ Indeed, even for those businesses which can self-certify, SBA determinations have significance. It is clear that SBA determinations are supposed to have some degree of finality, as the SBA will not re-consider its previous certifications, unless a protest presents credible evidence of a material change in circumstances or of false or misleading application information. 13 C.F.R. § 124.1011(c). If a disadvantaged status determination is to have any meaning, i t must permit some measure of reliance; the alternative is that the determination is not a determination at all, but a guess that provides no finality for either the business or the contracting party. Cf. 13 C.F.R. § 124.1013(h) (describing the "[r]esults of an SBA disadvantaged status determination," which "becomes effective immediately," and automatically permits the award of contracts to protested concerns). 18 would be material Thermcor in detailed benefit to the in the the SBA's program, Letter, provided to decision. despite makes 8(a) The the this SBA's retention of compliance conclusion participating concerns apparent. companies The would be compromised if, after the SBA made a discretionary determination of whether they were eligible for the program, the participant risked being dragged into court on an FCA claim simply because a competing company disagreed with the SBA's decision. The court does not articulate these policy considerations, however, to say representations recovery in a that like qui the these court were could fraudulent. tam action under the FCA, that the actions may have been fraudulent; to the claim for payment. not In the determine that Nevertheless, it is not for enough they must be material case-at-bar, there is a regulatory mechanism providing for the SBA to use its discretion in evaluating subjective factors. FCA liability here would interfere with other regulatory mechanisms and compromise their policy goals. regulatory Action scheme, by and the it SBA is is discretionary probably under so-designed the with the intention that businesses owned by disadvantaged individuals who fail to dot every "i" and cross every "t" will not automatically be removed from the program. It would frustrate the policy objectives of the 8(a) program and the purposes of the FCA, the a court manipulated regulation 19 that vests the SBA if with discretion and molded it into a participant's conduct be the fails company to to rigid test that deems in violation of comply with a the FCA, competing an 8 (a) whenever business's interpretation of the regulatory scheme and subsequently makes a claim for payment. The court OVERRULES the Relator's second objection. C. Third and Fourth Objections The Relator because partial Al." Obj . at objects that 11. The Relator recommendation to alleged defrauding the of "^simply [M]agistrate failures to object." 4318968, at Hayslett v. Va. Mar. them 30, further. grant SDVOSB and Va. No. 2016)). However, objects summary be 12, 7:14cv631, the court judgment, recommendations. The and court agrees the notes 20 waivers 2:15cvl72, (Morgan, court that the J.) will i t has 2016 or WL (quoting at not *2 (W.D. discuss reviewed de together with the Magistrate to the granting and denial with OVERRULES fourth objections. as the general before 2016 WL 1296080, Accordingly, Magistrate These raised No. 2016) Judge's recommendations with respect summary erred regarding Id. "treated Colvin, novo the full record in this case, of Judge the judgment program." should Aug. "to arguments Kearson v. (E.D. Colvin, also reiterate [J]udge,'" *2 Magistrate summary judgment should be entered in favor of Judge's objections "the the the Magistrate Relator's Judge's third and V. This court, having examined the Relator's Objections to the Magistrate Judge's respect the thereto, R&R in full. R&R, does and having made ^ Accordingly, Motion, favor of the Defendants, DENIED. The ECF Clerk novo findings with hereby OVERRULE the Objections and ADOPT Combined is CONCLUSION No. is 155, as requested summary in the Defendants' is GRANTED in judgment and the Relator's Motion, DIRECTED to forward a ECF No. copy Opinion and Final Order to counsel for the parties. IT IS SO ORDERED. /s/ Rebecca Beach Smith Chief Judge REBECCA BEACH CHIEF July ^ , 2017 21 SMITH JUDGE of 158, this

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