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Judicial Watch • Stamped Opposition to Motion to Dismiss in Kawa v Lew

Stamped Opposition to Motion to Dismiss in Kawa v Lew

Stamped Opposition to Motion to Dismiss in Kawa v Lew

Page 1: Stamped Opposition to Motion to Dismiss in Kawa v Lew

Category:Lawsuit

Number of Pages:15

Date Created:December 13, 2013

Date Uploaded to the Library:December 16, 2013

Tags:Lew, Kawa


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Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
U.S. DISTRICT COURT
SOUTHERN DISTRICT FLORIDA
WEST PALM BEACH DIVISION
CASE NO.: 13-80990- DIMITROULEAS/Snow
KAWA ORTHODONTICS, LLP,
Plaintiff,
vs.
JACK LEW, al.,
Defendants.
___________________________________/
PLAINTIFF MEMORANDUM LAW OPPOSITION DEFENDANTS MOTION DISMISS
Plaintiff Kawa Orthodontics, LLP Kawa Ortho counsel, respectfully submits this
memorandum opposition Defendants motion dismiss. grounds therefor, Kawa Ortho
states follows:
MEMORANDUM LAW
Introduction.
Defendants motion dismiss largely misconstrues Kawa Ortho challenge their
unlawful, unilateral delay the employer mandate the Patient Protection and Affordable
Care Act ACA which law was scheduled take effect January 2014, but has now
been postponed until 2015. Kawa Ortho brings this action under the Administrative Procedure
Act APA set aside Defendants unlawful agency action, which has caused Kawa Ortho
lose the substantial time and resources expended and the significant opportunity costs
incurred anticipation the mandate taking effect the date Congress specified the ACA.
Kawa Ortho does not bring this action taxpayer seeking restore lost federal revenues.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Kawa Ortho has pled ample facts establishing its standing. did not spend substantial
time and resources merely keep up-to-date with potential, new laws affecting how offers
health insurance coverage its employees and their dependents. spent its time and resources
determining what obligations had under the employer mandate and how best comply with
those new obligations because, employer with more than full time equivalent
employees, subject the mandate. was only after Kawa Ortho incurred these
 anticipatory compliance costs and corresponding opportunity costs that Defendants unilaterally
changed the effective date established Congress and set new, arbitrary deadline. the
Court were set aside Defendants unlawful delay and reinstate the effective date set
Congress, Kawa Ortho efforts and the opportunity costs incurred will not have been wasted.
Its injury will remedied. Kawa Ortho thus satisfies all three elements standing under
Article III the Constitution, and Defendants motion dismiss should denied.
II.
Statutory Background.
Under the ACA, most large employers, defined employers who have more than
 full time equivalent employees, face tax penalties they not offer affordable, minimum
essential health insurance coverage their employees and their employees dependents.
U.S.C. 4980H. addition, large employers also have certain annual reporting obligations
under the ACA. U.S.C. 6056. These include having certify whether they offer their full
time employees and their employees dependents the opportunity enroll affordable, 
 minimum essential health insurance coverage under employer-sponsored plan, the length
any waiting period, the months during which coverage was available, monthly premiums for the
lowest-cost option, the employer plan share covered health care expenses, the number
full-time employees, and the name, address, and taxpayer identification number each full-time
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
employee. Id. Employers who self-insure have separate reporting obligations. U.S.C.
 6055.
The ACA could not any clearer: the obligation employers with more full
time equivalent employees provide affordable, minimum essential health insurance
coverage their employees and their employees dependents under Section 4908H Title
 shall apply the months beginning after December 31, 2013. 
Pub. No. 111-148,
 1513(d), 124 Stat. 119, 256. Similarly, the reporting obligations under Section 6055 Title shall apply calendar years beginning after 2013. Pub. No. 111-148, 1502(e), 124
Stat. 119, 252. Likewise, the obligations under Section 6056 Title shall apply the
periods beginning after December 31, 2013. Pub. No. 111-148, 1514(d), 124 Stat. 119,
257.
III.
Factual Background.
Kawa Ortho Boca Raton based orthodontics and oral surgery practice that employs
more than full-time equivalent employees and offers these employees health insurance
coverage and pays portion the coverage cost. Complaint 13. Prior July 2013,
Kawa Ortho expended substantial time and resources, including money spent legal fees and
other costs, anticipation the employer mandate provisions the ACA taking effect
January 2014. Id. 14. Kawa Ortho incurred these anticipatory compliance costs
order determine what options and obligations had under the employer mandate enacted Congress. Id. addition, Kawa Ortho would not have expended its time and resources and
incurred these anticipatory compliance costs 2013 the employer mandate had not been
Kawa Ortho filing motion for summary judgment along with this opposition which expands upon
the specific facts pled the Complaint. See Declaration Larry Kawa, D.D.S. attached Exhibit Plaintiff
Statement Material Facts Support Its Motion for Summary Judgment.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
scheduled take effect January 2014, but instead would have spent its time, resources, and
money other priorities. Id. 14. July 2013, the U.S. Department Treasury announced that the employer
mandate was being delayed until 2015. Id. 15. This announcement was formalized July 2013, when the Internal Revenue Service issued Notice 2013-45, entitled Transition Relief
for 2014 Under 6055 6055 Information Reporting), 6056 6056 Information Reporting)
and 4980H (Employer Shared Responsibility Provisions). Id. 16.
The effect the delay both costly and widespread. According the White House
website, least 200,000 employers the United States employ more than employees. Id.
 18. Another government source, the Agency for Health Research and Quality the U.S.
Department Health and Human Services, reports that the number employers the United
States having more than employees high 1.6 million. Id. 18. addition,
according the Congressional Budget Office, the delay the employer mandate will result estimated loss $10 billion penalty payments employers and approximately million
fewer people are expected enrolled employment-based coverage 2014 than the number
previously projected, primarily because the one-year delay penalties employers. Id.
 19.
IV.
Standard Review.
Rule 12(b)(1) Motions.
 Dismissal under Rule 12(b)(1) extremely difficult obtain. Garcia Copenhaver,
Bell Assocs., M.D. P.A., 104 F.3d 1256, 1260 (11th Cir. 1997) (citing Simanonok
Simanonok, 787 F.2d 1517, 1519 (11th Cir. 1986)); see also Monarch Shipping United
States, 2013 U.S. Dist. LEXIS 152076, *17 (S.D. Fla. Aug. 15, 2013); Cabrera Miami
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Corp., 2009 U.S. Dist. LEXIS 64278, **7-8 (S.D. Fla. July 13, 2009); Waterfront License
Corp., 231 F.R.D. 693, 697 (S.D. Fla. 2005). Rule 12(b)(1) motions consist either factual
attack facial attack. See McElmurray Consol. Gov Augusta-Richmond Cnty., 501
F.3d 1244, 1251 (11th Cir. 2007). Defendants bring facial attack. Defendants Motion
Dismiss for Lack Subject Matter Jurisdiction and Supporting Memorandum Law Defs 
Mtn. result, Kawa Ortho afforded safeguards similar those provided
opposing Rule 12(b)(6) motion. Lawrence Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
The Court merely look and see the plaintiff has sufficiently alleged basis subject
matter jurisdiction, and the allegations [the] complaint are taken true for the purposes the
motion. Id.
Standing. have standing under Article III the Constitution, plaintiff must demonstrate three
familiar requirements: (1) injury-in-fact (2) causal connection between the asserted injuryin-fact and the challenged action the defendant and (3) that the injury will redressed
favorable decision. Houston Marod Supermarkets, Inc., 733 F.3d 1323, 2013 U.S. App.
LEXIS 22232, *10 (11th Cir. 2013); Shotz Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (citing
Lujan Defenders Wildlife, 504 U.S. 555, 560-61, 112 Ct. 2130, 2136, 119 Ed. 351
(1992)). These requirements are the irreducible minimum required the Constitution for
plaintiff proceed federal court. Id. **10-11 (citing Northeastern Fla. Chapter
Associated Gen. Contractors Am. City Jacksonville, Fla., 508 U.S. 656, 664, 113 Ct.
2297, 2302, 124 Ed. 586 (1993)).
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Kawa Ortho plainly has standing.
Kawa Ortho standing bring this action unassailable. clearly has been injured and
will continue injured unless Defendants unlawful delay the employer mandate set
aside.
Kawa Ortho has suffered injury-in-fact. well established that anticipatory compliance costs constitute injury-in-fact 
for purposes standing. One particularly salient case, Roman Catholic Archdiocese New
York Sebelius, 907 Supp. 310 (E.D.N.Y. 2012) Roman Catholic Archdiocese
concerns challenge the ACA coverage mandate, which requires most group health
insurance plans provide coverage for, among other things, women preventative care and
screening, including contraception, sterilization, and related counseling, without any form
cost-sharing. Roman Catholic Archdiocese, five employers affiliated with the Roman
Catholic Church challenged the coverage mandate religious freedom grounds. The Court
found that the plaintiffs had standing:
Plaintiffs here have established present harms stemming from the future
operation the Coverage Mandate. These harms range from budgeting and
administrative costs incurred analyzing how update their health plans once
the Coverage Mandate becomes effective diversion funds away from
ministries Since each plaintiff employs numerous people, the practical
realities administering their employees health care coverage require plaintiffs undertake the preparations about which they now complain.
907 Supp. 329-30. addition, least two courts have held that anticipatory compliance costs constitute injury-in-fact legal challenges the employer mandate. Liberty University, Inc.
Based media reports, third court appears have reached this same conclusion
challenge the employer mandate, but the ruling was issued orally and transcript has not yet
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Lew, 2013 U.S. App. LEXIS 14052, **26-28 (D.C. Cir. July 11, 2013) (finding standing because
the plaintiff may well incur additional costs because the administrative burden assuring
compliance with the employer mandate Oklahoma Sebelius, 2013 U.S. Dist. LEXIS
113232, **27-30 (E.D. Okla. Aug. 12, 2013) (same).
Similarly, numerous other courts also have held that anticipatory compliance costs
constituted injury-in-fact legal challenges the individual mandate provisions the
ACA. One court declared, established that the taking current measures ensure future
compliance with statute can constitute injury. Mead Holder, Supp. 16,
(D.D.C. 2011) (finding standing based the plaintiffs needing rearrange their finances now anticipation the individual mandate). Other courts have ruled similarly. Calvey Obama,
792 Supp. 1262 (W.D. Ok. 2011) (finding standing where [i]t may reasonably inferred
from Plaintiffs allegations that they must take steps now preparation for the imminent
requirement the Act that they purchase health insurance Gaudy-Bachman U.S. Dep
Health and Human Servs., 764 Supp. 684, 690-92 (M.D. Pa. 2011) (finding standing based the plaintiffs financial planning and budgeting decisions [undertaken] preparation for the
implementation the individual mandate Thomas More Law Ctr. Obama, 720 Supp.
882, 887-89 (E.D. Mich. 2010) (finding standing based the plaintiffs need reorganize
their affairs order comply with the individual mandate Florida U.S. Dep Health
and Human Services, 716 Supp. 1120, 1145-47 (N.D. Fla. 2010) (finding standing based
been made available. The case Halbig Sebelius, Case No. 13-623 (RWR) (D. District
Columbia). The oral ruling was made October 22, 2013. course, the individual mandate survived these and other legal challenges.
generally Nat Fed. Indep. Bus. Sebelius, 132 Ct. 2566 (2012).
See
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV diversion resources from business endeavors and reordering economic
circumstances order comply with individual mandate
Finally, other courts also have held that anticipatory compliance costs constitute
 injuries-in-fact contexts having nothing with the ACA.
See Virginia Am.
Booksellers Ass 484 U.S. 383, 392-93 (1988) (finding booksellers had standing because they
 w[ould] have take significant and costly compliance measures Ass Private Sector
Colls. Univs. Duncan, 681 F.3d 427, 457-58 (D.C. Cir. 2012) (finding increased compliance
costs constitute injury fact sufficient confer standing); N.Y. Civil Liberties Union
Grandeau, 528 F.3d 131 (2d Cir. 2008); State Farm Mut. Auto Ins. Co. Dole, 802 F.2d 474,
480 (D.C. Cir. 1986) (finding suit ripe challenged rule would reasonably prompt regulated
industry, unwilling risk substantial penalties defying the policy, undertake costly
compliance measures Nat Rifle Ass Magaw, 132 F.3d 272, 287 (6th Cir. 1997) (finding
standing based compliance costs).
Courts also have found that plaintiffs challenging the individual mandate had standing
because they incurred opportunity costs having purchase health insurance such not
purchasing new car, reducing spending, diverting money from other business goals. 
Roman Catholic Archdiocese, 907 Supp. 329. opportunity cost recognizes that
opportunity given engaging particular activity part the cost that activity. See,
e.g., Chronister Oil Co. Unocal Ref. and Mktg., F.3d 462, 465 (7th Cir. 1994). pled the Complaint, Kawa Ortho incurred the same type anticipatory
compliance costs and opportunity costs did the plaintiffs each these cases. Kawa Ortho
expended substantial time and resources and incurred opportunity costs 2013 anticipation
the mandate taking effect January 2014, the date set Congress. Complaint 14.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
would not have expended its time and resources and incurred these anticipatory compliance 
costs and opportunity costs 2013 the mandate had not been scheduled take effect until
2015. Id. would have spent its time and resources other priorities, including generating
new patients for its practice, instead. Id. Kawa Ortho injury not the least bit speculative
hypothetical. real. employer with more than full-time equivalent employees,
Kawa Ortho subject the obligations imposed the employer mandate. Id. 13. had choice but determine how comply with the obligations the mandate scheduled take
effect January 2014.
Defendants arguments and authorities are inapposite. Defendants first cite Family
Planning and Reproductive Health Ass Inc. Gonzales, 468 F.3d 826 (D.C. Cir. 2006) for the
proposition that Kawa Ortho injury was self-inflicted. Defs Mtn. that case, the
plaintiff challenged amendment the Consolidated Appropriations Act 2006, which
prohibited recipients federal grant funds from discriminating against individuals entities
that refuse provide refer for abortions. 468 F.3d 827. The plaintiff asserted that did
 not know how abide pre-existing regulations that required all recipients specific
federal funds offer abortion counseling well the recently enacted statute that seemed conflict with the pre-existing regulations. Id. 829-830. holding that the plaintiff
lacked standing, the U.S. Court Appeals for the District Columbia Circuit stated:
The supposed dilemma particularly chimerical here because the [plaintiff
asserted injury appears largely its own making. Here the [plaintiff]
has within its grasp easy means for alleviating the alleged uncertainty. could
inquire HHS exactly how the agency proposes resolve any the conflicts
that claims spot between the amendment and the regulations. the
[plaintiff] has chosen remain the lurch, cannot demonstrate injury
sufficient confer standing.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Id. 351. Kawa Ortho injury the exact opposite. Based the plain language the ACA,
the obligations the employer mandate were set take effect January 2014. There was uncertainty dilemma when the mandate was take effect. Nor was there any
uncertainty dilemma whether applied Kawa Ortho. Its anticipatory compliance 
costs and opportunity costs were real and necessary just like the plaintiffs anticipatory
compliance costs and opportunity costs Roman Catholic Archdiocese, Liberty University,
Inc., Oklahoma, and the other mandate cases cited herein were real and necessary.
Defendants reliance State National Bank Lew, 2013 U.S. Dist. LEXIS 108308
(D.D.C. Aug. 2013) misplaced. that case, one the plaintiffs alleged that had standing
because had spent money keep abreast developments under the Dodd-Frank Act and that
these expenditures are subsumed under the heading compliance costs. State National Bank,
2013 U.S. Dist. LEXIS *66. holding that the plaintiff did not have standing, the court
found that the alleged costs were not compliance costs all. Id. *68. Instead, the court
concluded that the plaintiff had incurred costs merely keep abreast developments the
law. Id.
Kawa Ortho does not allege that expended its time and resources merely keep
abreast changes the law. Rather, alleges that the ACA imposes obligations and penalties employers with more than full time equivalent employees (Complaint and 11),
that employer with more than full time employees for purposes the obligations
the ACA (id. 13), that expended substantial time and resources anticipation the
 employer mandate provisions the ACA taking effect January 2014 (id. 14), and
that would not have expended its time and resources this manner the mandate had not
been scheduled into effect until 2015. Id. State National Bank does not apply. Kawa
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Ortho has plainly suffered injury-in-fact just like the plaintiffs Roman Catholic
Archdiocese, Liberty University, Inc., Oklahoma, and the other mandate cases cited herein
suffered injuries-in-fact. causal connection exists between the Kawa
Ortho injury-in-fact and Defendants delay the employer mandate. 
Kawa Ortho injury also causally connected Defendants delay the employer
mandate. Like litigant who spends its time and resources preparing for long-scheduled trial,
only have the trial continued unexpectedly just was about begin, Kawa Ortho injury directly, not solely, the result the delay. Were not for the delay, Kawa Ortho would not
have lost any the value the substantial time and resources expended 2013
anticipation the mandate taking effect January 2014. Nor would the opportunity costs
incurred rendered unnecessary.
Defendants misconstrue the nature Kawa Ortho claim and the obvious causal
connection between Kawa Ortho injury and Defendants unilateral decision postpone the
effective date the employer mandate. Kawa Ortho does not allege that the suspension
enforcement the mandate caused expend the time and resources. Defs Mtn. 11. The
mandate itself did. The impending mandate required Kawa Ortho take steps determine how comply with its legal obligations before the January 2014 effective date. Kawa Ortho
plainly alleges that took these steps prior July 2013 and that would not have done
the mandate had not been scheduled take effect January 2014. Complaint 14.
Defendants July 2013 delay the mandate diminished, not destroyed the value the time
and resources Kawa Ortho expended before July 2013 anticipation the mandate taking
effect January 2014. Id. 17. rendered unnecessary the opportunity costs Kawa Ortho
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
incurred. Id. and 17. Kawa Ortho would have spent its time and resources differently
and would not have incurred the opportunity costs incurred had not been obligated offer
 affordable minimum essential health coverage its employees January 2014. Id. and 14. Defendants unlawful delay the mandate July 2013 caused Kawa Ortho
injury, not Kawa Ortho reasonable business decision spend time and resources before that
date preparing for obligations with which, law, had comply January 2014.
Nor does Grocery Mfrs. Ass Envtl. Protection Agency, 693 F.3d 169 (D.C. Cir. 2012)
apply. that case, the EPA approval the introduction E15 for use certain vehicles
and engines, [did] not force, require, even encourage fuel manufacturers any related entity introduce the new fuel. Grocery Mfrs. Ass 693 F.3d 177. Therefore, the court held,
 [t]o the extent the [plaintiffs] implement that option voluntarily, any injury they incur result self-inflicted harm not fairly traceable the challenged government conduct. Id. There
was (and is) nothing voluntary about Kawa Ortho obligation comply with the employer
mandate. The only issue when that obligation takes effect the date enacted into law
Congress the date arbitrarily selected Defendants. Grocer Mfrs. Ass does not help
Defendants causal connection argument.
Kawa Ortho injury easily traceable
Defendants unlawful delay the mandate.
Kawa Ortho injury redressable.
Defendants redressability argument likewise misconstrues the nature Kawa Ortho
claim. Kawa Ortho does not assert that requiring immediate enforcement other employers 
reporting obligations potential tax penalties will recompense its injury. Defs Mtn. 1213. Nor requesting that repaid for any prior expenditures time and resources. Id. n.7. Nor does Kawa Ortho ask that the delay the mandate only declared unlawful. Id.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV 13. Kawa Ortho Complaint expressly asks the Court enter injunction prohibiting and
setting aside Defendants unlawful delay the employer mandate. Complaint Prayer for
Relief
Under the APA, the Court must set aside unlawful agency action. U.S.C. 706(2). the Court sets aside Defendants unlawful delay the employer mandate, the effective date
for which Kawa Ortho planned the one established Congress will reinstated. The
 anticipatory compliance costs and accompanying opportunity costs Kawa Ortho incurred will
not have been wasted. Kawa Ortho prevails, its injury will redressed the relief seeks
and which entitled under the APA. Kawa Ortho has standing.
Kawa Ortho Did Not Allege Injury Taxpayer.
Nowhere the Complaint does Kawa Ortho allege that brought this action
taxpayer. Nor does Kawa Ortho allege that has standing taxpayer. Defendants simply
misconstrue the purpose Kawa Ortho allegations about the widespread impact
Defendants unlawful delay the mandate. See Complaint 18-19. The purpose these
allegations was demonstrate that Defendants action not merely transitional relief
enforcement decision. deliberate and unequivocal policy change that affects hundreds
thousands employers and millions employees and their dependents and has very real, very
significant fiscal impact. See Plaintiff Motion for Summary Judgment
Conclusion.
For the foregoing reasons and the entire record herein, Kawa Ortho respectfully requests
that the Court deny Defendants motion dismiss.
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
Dated: December 13, 2013
Respectfully submitted, Christopher Lunny
CHRISTOPHER LUNNY (FL 008982)
E-mail: chris@radeylaw.com
Secondary E-mail: cdemeo@radeylaw.com
HARRY THOMAS (FL 195097)
E-mail: hthomas@radeylaw.com
Secondary E-mail: jday@radeylaw.com
Radey, Thomas, Yon Clark, P.A.
Post Office Box 10967 (32302)
301 South Bronough Street, Suite 200
Tallahassee, Florida 32301
(850) 425-6654 (phone)
(805) 425-6694 (facsimile) Paul Orfanedes
PAUL ORFANEDES
(Admitted Pro Hac Vice)
E-mail: porfanedes@judicialwatch.org
JAMES PETERSON
(Admitted Pro Hac Vice)
E-mail: jpeterson@judicialwatch.org
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
(202) 646-5172 (phone)
(202) 646-5199 (facsimile)
Attorneys for Plaintiff
Case 9:13-cv-80990-WPD Document Entered FLSD Docket 12/13/2013 Page
Kawa Orthodontics, LLP Lew, al.
Case No. 13-80990-CIV
CERTIFICATE SERVICE HEREBY CERTIFY that copy the foregoing was electronically served through the
Court CM/ECF system, unless otherwise noted, all counsel parties record the
Service List below, this 13th day December, 2013.
Caroline Lewis Wolverton
U.S. Department Justice, Civil Division
Post Office Box 883
Washington, D.C. 20001
caroline.lewis-wolverton@usdoj.gov Christopher Lunny
CHRISTOPHER LUNNY