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Judicial Watch • JW v DOJ AR 15 ammo cross MSJ 00600

JW v DOJ AR 15 ammo cross MSJ 00600

JW v DOJ AR 15 ammo cross MSJ 00600

Page 1: JW v DOJ AR 15 ammo cross MSJ 00600

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Number of Pages:38

Date Created:March 12, 2018

Date Uploaded to the Library:March 13, 2018

Tags:CKK, Regulation, framework, 00600, Case, Fedeli, Chris, Material, facts, proposed, statement, exhibit, search, responsive, ATF, defendant, Obama, filed, plaintiff, request, document, records, DOJ, FOIA


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Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
Case No. 17-0600-CKK
PLAINTIFF CONSOLIDATED BRIEF OPPOSITION
MOTION FOR SUMMARY JUDGMENT AND SUPPORT
CROSS-MOTION FOR SUMMARY JUDGMENT
Chris Fedeli Bar 472919
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
(202) 646-5172
Dated: March 13, 2018
Counsel for Plaintiff
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
TABLE CONTENTS
Introduction and Summary ..............................................................................................................1
Factual Background .........................................................................................................................1
Standard Review ..........................................................................................................................3
Argument .........................................................................................................................................3 Defendant Failed Conduct Adequate Search, and Its Declaration Fails Establish
Otherwise ...................................................................................................................................3 The Court Should Order Defendant Produce the Remainder the Allegedly NonResponsive 1,900 Pages Records Plaintiff ........................................................................7
Conclusion .......................................................................................................................................8
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
TABLE AUTHORITIES
Cases
Anderson Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................3
Ashcroft Iqbal, 556 U.S. 662 (2009) ............................................................................................7
Boyd U.S. Marshals Serv., 2002 U.S. Dist. Lexis 27734 (D.D.C. Mar. 15, 2002) ......................4
Hemenway Hughes, 601 Supp. 1002 (D.D.C. 1985) ..............................................................4
LaCedra Executive Office for the United States Attorneys, 317 F.3d 345 (D.C. Cir. 2003) ......4
Military Audit Project Casey, 656 F.2d 724 (D.C. Cir. 1981) .....................................................3
Oglesby U.S. Dep the Army, 920 F.2d (D.C. Cir. 1990) .................................................4
People for the Am. Way Found. Nat Park Serv., 503 Supp. 284 (D.D.C. 2007) .........3,
Scurmont LLC Firehouse Restaurant Grp.,
2011 U.S. Dist. Lexis 75715 (D.S.C. July 2011) .............................................................7
United States Windsor, 133 Ct. 2675 (2013) ...........................................................................7
Weisberg U.S. Dep Justice, 745 F.2d 1476 (D.C. Cir. 1984) ................................................3
Weisberg U.S. Dep Justice, 705 F.2d 1344 (D.C. Cir. 1983) ...........................................4,
Yeager Drug Enforcement Admin., 678 F.2d 315 (DC Cir. 1982) ..............................................5
Statutes and Rules U.S.C. 552(a)(3)(A) ..................................................................................................................4 U.S.C. 552(a)(4)(B) ...................................................................................................................3 U.S.C. 921(a)(17)(C) ...............................................................................................................1
Fed.R.Civ.P. 56(c) ..........................................................................................................................3
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
Introduction and Summary
Defendant unlawfully withholding responsive records requested under FOIA
inaccurately claiming Plaintiff has not asked for those records. Defendant argument rests upon distorted interpretation that Plaintiff FOIA request seeks only records related intentional
agency decision publish inaccurate information, opposed decision publish inaccurate
information intentionally otherwise. The Court should not allow Defendant the benefit this
evasion. Furthermore, the evidence this case shows that additional responsive records are
overwhelmingly likely exist. Finally, this case presents easy remedy under FOIA, the
Court may simply order Defendant produce the remaining records Defendant has already
retrieved but not released.
Factual Background about January 15, 2015, the Bureau Alcohol, Tobacco, Firearms, and Explosives ATF component Defendant, released the 2014 Edition its Federal Firearms
Regulations Reference Guide. This ATF Guide edition omitted the usual exemption schedule
specifying that certain AR-15 ammunition used for sporting purposes was available for sale
the public and not restricted statute armor-piercing. about February 13, 2015, the
ATF published notice proposed regulation entitled Framework for Determining Whether
Certain Projectiles are Primarily Intended for Sporting Purposes Within the Meaning
U.S.C. 921(a)(17)(C). This Proposed Regulation similarly would have reclassified AR-15
ammunition commonly used for sporting purposes armor-piercing, which would make the
ammunition unavailable most members the public.
This 2014 ATF firearms guide document available https://www.atf.gov/firearms/docs/guide/federal-firearmsregulations-reference-guide-2014-edition-atf-p-53004/download.
This proposed regulation notice available https://www.atf.gov/resource-center/docs-0/download.
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
Reaction these agency actions arrived March 2015. March 2015, twohundred and thirty-six members Congress sent letter ATF Director Todd Jones claiming
the Proposed Rulemaking was illegal under statute and violated the Second Amendment.3
March the ATF issued statement that the omission the AR-15 ammunition exemption
the 2014 ATF Guide was mistaken publishing error.4 March 2015, fifty-three U.S.
Senators sent letter ATF Director Todd Jones stating that the ATF proposed
reclassification AR-15 ammunition was beyond its statutory authority and conflict with the
Second Amendment.5 March 10, 2015, the ATF announced was withdrawing its Proposed
Rulemaking restricting AR-15 ammunition.6 March 2015, Plaintiff submitted the FOIA request Defendant about the changes the ATF Guide that the subject this lawsuit. Plaintiff then filed this FOIA lawsuit
April 2017 after nearly two years without agency compliance. After the litigation
commenced, Defendant eventually produced responsive pages records Plaintiff.
However, all these records were dated March 2015, while Plaintiff FOIA request sought
all records created over one-year period starting March 2014 and ending March
2015. Defendant also stated that retrieved another 1,900 pages records which did not
release Plaintiff, claiming these records were not responsive. Given the fact that the
See Letter from Congressman Bob Goodlatte al. Todd Jones, March 2015, available
https://culberson.house.gov/uploadedfiles/letter_to_atf_director_jones_apa_framework.pdf.
See Plaintiff Statement Material Facts and Exh. This statement also published the ATF
website https://www.atf.gov/resource-center/docs/noticeofpublishingerrorpdf/download.
See Press Release, Grassley, Senators Condemn ATF Framework Limiting Sporting Ammo, March 2015,
available https://www.grassley.senate.gov/news/news-releases/grassley-52-senators-condemn-atf-frameworklimiting-sporting-ammo. copy this letter also attached hereto Exhibit Plaintiff Statement
Material Facts.
See Press Release, Notice Those Commenting the Armor Piercing Ammunition Exemption Framework,
March 10, 2015, available https://www.atf.gov/news/pr/notice-those-commenting-armor-piercing-ammunitionexemption-framework. copy this Press Release also attached hereto Exhibit Plaintiff Statement
Material Facts.
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
Reference Guide was published January 2015 and the Proposed Regulation was published
February 2015, and yet records pre-dating these events were produced, Plaintiff challenged
the adequacy Defendant search for responsive records this lawsuit.
Standard Review FOIA litigation, all litigation, summary judgment appropriate only when the
pleadings and declarations demonstrate that there genuine issue material fact and the
moving party entitled judgment matter law. Anderson Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Fed.R.Civ.P. 56(c). reviewing motion for summary judgment under
FOIA, the court must view the facts the light most favorable the requester. Weisberg
U.S. Dep Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Also FOIA litigation, but unlike
most other litigation, defendant agency moving for judgment bears the burden proof not
the plaintiff challenging defendant search sufficiency withholdings. U.S.C. 552(a)(4)(B) the burden the agency sustain its action Military Audit Project Casey, 656 F.2d
724, 739 (D.C. Cir. 1981).
Argument Defendant Failed Conduct Adequate Search, and Its Declaration Fails
Establish Otherwise
Defendant has failed meet its burden proof that conducted sufficient search, and
its argument otherwise does little more than set out the legal standard and cite its own
declaration. Def. Brief, ECF pp. 3-7. The adequacy agency FOIA search
declaration dependent the circumstances the case People for the Am. Way Found.
Nat Park Serv., 503 Supp. 284, 293 (D.D.C. 2007) Because the adequacy
agency search dependent upon the circumstances the case there uniform standard
for sufficiently detailed and nonconclusory affidavits. (internal punctuation omitted).
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
satisfy its burden, agency search declaration must relatively detailed, Weisberg U.S.
Dep Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983), and must explain that the components
and systems searched were reasonably calculated uncover all relevant documents and that other record system was likely produce responsive documents. Oglesby U.S. Dep
the Army, 920 F.2d 57, (D.C. Cir. 1990).
The Defendant has failed meet this standard with its search declaration, which
incomplete places, conclusory other places, and way adequate given the
circumstance this case. See Boyd U.S. Marshals Serv., 2002 U.S. Dist. Lexis 27734, *23, No. 99-2712 (D.D.C. Mar. 15, 2002) (search declarations were insufficient because neither
agency provides explanation for where searched for records and why those locations are the
only locations contain responsive records. (italics added). Accordingly, the search not
sufficient, and Defendant should ordered take further steps comply with FOIA. See Def.
Decl. 14-1.
Defendant brief and declaration shows the ATF improperly limited the search based
ATF own narrow misreading Plaintiffs FOIA request. Def. Brief, ECF 3-4; Def. Decl.,
ECF 14-1 FOIA requestor only required reasonably describe the documents
seeks. U.S.C. 552(a)(3)(A). When complying with FOIA, agency must careful not
read [a] request strictly that the requester denied information the agency well knows exists its files... Hemenway Hughes, 601 Supp. 1002, 1005 (D.D.C. 1985); LaCedra
Executive Office for the United States Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003) (agencies
must interpret the request liberally and must construe FOIA request liberally The
linchpin whether agency misreading request avoid the production records
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
whether the agency able determine precisely what records are being requested. See
Yeager Drug Enforcement Admin., 678 F.2d 315, 326 (DC Cir. 1982).
First, ATF explanation that one decided omit the exemption list and therefore
the FOIA request was inaccurate takes curious view the meaning decisions and
accountability. Def. Brief, ECF 3-4; Def. Decl., ECF 14-1 Specifically, ATF seems believe that since the omission the exemption list was not supposed happen, the mistake
was therefore unrelated employee decisions. This not how Plaintiff views matters. Rather,
Plaintiff FOIA request allows for the possibility that someone multiple people ATF made series decisions that ultimately led the publishing error. Even innocent mistakes not
happen vacuum; and this case, government employees made decisions that eventually
resulted inaccurate ATF Guide being published. ATF claim that one decided
anything and therefore Plaintiff FOIA request inaccurate seems responsibility dodge.
Second, Defendant brief and declaration also insufficiently detailed and does not
fully describing the publishing error, and therefore the Court cannot ultimately determine the
search were sufficient even Defendant reading Plaintiff request were permissible. Def.
Brief, ECF 3-4; Def. Decl., ECF 14-1 The revising and publishing the Reference
Guide involved action from ATF employees and officials. publishing error could mean
anything from computer machine malfunction, official hitting the wrong key
keyboard, official sending the wrong version document another official,
miscommunication between officials about which version should published. Depending
which these circumstances was present, additional records would likely responsive
Plaintiff request.
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
Third, Defendant brief and search declaration also fail account for whether its
unusual reading the word decided Plaintiff FOIA request means that excluded records
from production after review. reading the FOIA request narrowly, Defendant likely avoided
producing records which discussed the armor-piercing exemption list reasoning that such
discussions were not about ultimate decision intentionally omit such list. Def. Brief,
ECF 3-4; Def. Decl., ECF 14-1 Considering that 1,900 pages were located and
approximately 1,800 those pages have not been produced, Defendant misreading likely led responsive records being improperly deemed unresponsive and withheld. Def. Decl., ECF 141 14; see also Plf. SOF
Finally, overwhelming evidence exists that Defendant has failed produce responsive
records. Plaintiff FOIA request asked for documents spanning full one-year period from
March 2014 through March 2015. Def. SOF, ECF 14-2 The timeline January 2015
ATF Guide Publication and February 2015 Proposed Regulation combined with production
exclusively limited documents dated the single subsequent month March 2015 indicates
that more responsive documents exist that have not been produced Plaintiff. Plf. SOF and Exhs. Defendant has failed show that conducted adequate
search under FOIA because its declaration does not show that its search was sufficient
considering these circumstances. People for the Am. Way Found. Nat Park Serv., 503
Supp. 284, 293 (D.D.C. 2007).
Here, the Court must consider the unusual circumstance both the events underlying
Plaintiff FOIA request and the discordant contents the FOIA production resolve
Plaintiff claim. 2015, the ATF twice accidentally deliberately indicated change its
classification AR-15 ammunition: once when published its Reference Guide January
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
2015, and again when issued the Proposed Regulation February 2015. Plf. Statement
Material Fact SOF and Exhs. G.7 According the ATF, the reclassification the January Reference Guide was error, while the publication the Proposed Regulation
was deliberate. Plf. SOF and Exhs. Accordingly, stands reason that there
was some internal ATF discussions the traditional AR-15 ammunition exemption the ATF
2014 Reference Guide that pre-date March 2015. And yet, Defendant has not produced
identified any such records Plaintiff. Plf. SOF and Exhs.
For all the foregoing reasons, Defendant search declaration insufficient and
inadequate. Accordingly, Defendant has failed meet its burden proof and its motion for
summary judgment should denied. Weisberg, 705 F.2d 1351. The Court Should Order Defendant Produce the Remainder the Allegedly NonResponsive 1,900 Records Plaintiff
The Court should order Defendant produce all responsive records Plaintiff from
Defendant search without withholding based willful misreading the FOIA request.
Specifically, the Court may order Defendant produce responsive all internal documents
that discuss the armor-piercing ammunition exemption the context preparation the 2014
ATF Guide. This will eliminate the possibility the agency hiding records behind its excuse
that Plaintiff only asked for records about non-accidental omission from the ATF Guide. this case, there easily enforced and workable solution remedying Defendant
insufficient search. The Court can simply order Defendant produce the remainder the 1,900
documents already processed this case. Def. Decl., ECF 14-1 14; see also Plf. SOF
See also footnotes supra. Courts may judicially notice facts government website selfauthenticating. See Ashcroft Iqbal, 556 U.S. 662, 667 (2009) (judicial notice facts Justice Department
website); United States Windsor, 133 Ct. 2675, 2690 (2013) (noticing Maine website); Scurmont LLC
Firehouse Restaurant Grp., 2011 U.S. Dist. Lexis 75715 *48-49, fn. (D.S.C. July 2011) government
websites are generally considered admissible and self-authenticating.
Case 1:17-cv-00600-CKK Document Filed 03/13/18 Page
Defendant declarant has affirmed that these documents were gathered from full date-range
search the relevant ATF offices using terms that included the ammunition issue and
regulations guide. Def. Decl., ECF 14-1 13. Accordingly, overwhelmingly likely that
many these records are responsive Plaintiff actual FOIA request written not the
request Defendant has reimagined it.
Conclusion
Plaintiff Motion for Summary Judgment should granted, and Defendant Motion for
Summary Judgment should denied. The Court should order Defendant produce the
remainder the 1,900 pages records described herein.
Dated: March 13, 2018
Respectfully submitted, Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third St. SW, Ste. 800
Washington, 20024
Tel: (202) 646-5185
cfedeli@judicialwatch.org
Attorney for Plaintiff
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
JUDICIAL WATCH, INC.,
Case No. 17-0600-CKK
PLAINTIFF RESPONSE DEFENDANT STATEMENT UNDISPUTED
MATERIAL FACTS, AND STATEMENT MATERIAL FACTS SUPPORT
CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h),
respectfully submits this Response Defendant Statement Material Facts Not Dispute
(ECF 14-2), and Statement Material Facts Support Cross-Motion for Summary Judgment:
Plaintiff Response Defendants Statement Undisputed Material Facts
Not disputed.
Disputed.
Plaintiff FOIA request was premised the ATF decision revise
the Regulation Guide. Records discussing portions the Regulation Guide that were omitted
unintentionally from the version ATF decided publish are responsive Plaintiff FOIA request.
Defendant use the phrase immediately corrected characterization facts
not evidence and therefore improperly asserted Statement Facts, Defendant
declarant has not specified the amount time that passed between publication the inaccurate
ATF guide and correction. See Def. Decl., ECF 14-1 Plaintiff lacks sufficient knowledge confirm deny the remainder this paragraph, including precisely what the phrase
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page
publishing error means, Defendant has provided description specific events which
would explain that phrase any meaningful way.
See Judicial Watch, Inc. Food and Drug
Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (because the asymmetrical distribution
knowledge between requester and agency FOIA litigation, Courts must place the burden the agency sufficiently prove the factual elements necessary for its defense).
Plaintiff lacks sufficient knowledge confirm deny this paragraph.
Plaintiff lacks sufficient knowledge confirm deny this paragraph.
Plaintiff lacks sufficient knowledge confirm deny this paragraph.
Plaintiff lacks sufficient knowledge confirm deny this paragraph.
Plaintiff lacks sufficient knowledge confirm deny this paragraph.
10.
II.
Not disputed.
Plaintiff lacks sufficient knowledge confirm deny this paragraph.
Plaintiff Statement Undisputed Material Facts the June 12, 2017 joint filing with the Court, Defendant stated had located
estimated 2,000 pages potentially responsive records for processing. ECF July 14, 2017, Defendant informed Plaintiff letter that was releasing
pages responsive records this lawsuit. ECF 14-1 11-12. September 15, 2017, Defendant sent Plaintiff letter informing Plaintiff that
further records would released this lawsuit beyond those pages. That letter attached
hereto Exhibit
All the pages records released were dated March 2015. See
Declaration Chris Fedeli, attached hereto Exhibit
Defendant produced March 2015 email record this lawsuit entitled FINAL:
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page
Media Stmt the ATF Regulations Publishing Error, attached hereto Exhibit March 2015, fifty-three Senators sent letter the Director the Bureau
Alcohol, Firearms, and Tobacco concerning the ATF Framework for Determining Whether
Certain Projectiles are Primarily Intended for Sporting Purposes, attached hereto Exhibit March 10, 2015, Defendant issued press release entitled Notice Those
Commenting the Armor Piercing Ammunition Exemption Framework, attached hereto
Exhibit NEWSWEEK article Taylor Wofford entitled Obama Proposed Ban Green
Tip Bullets Misfires was published March 12, 2015 and attached hereto Exhibit FOX NEWS article Maxim Lott entitled ATF misfire? Guide indicates bullets
center firestorm already banned; agency blames error, was published March 10, 2015 and attached hereto Exhibit
Dated: March 13, 2018
Respectfully submitted, Chris Fedeli
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
cfedeli@judicialwatch.org
202-646-5172
Counsel for Plaintiff
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page
Exhibit
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page
September 15, 2017
REFER TO: 2015-0705
Mr. William Marshall
Judicial Watch, Inc.
425 3rd Street SW, Suite 800
Washington, 20224-3232
Dear Mr. Marshall:
This response your March 2015 Freedom Information Act (FOIA) request the
Bureau Alcohol, Tobacco, Firearms and Explosives (ATF), which now part ongoing
litigation with this agency.
Please advised that ATF has completed search email accounts where potentially
responsive records would located. additional responsive records were located pursuant
these searches. result, the July 14, 2017 document production contains all the responsive
records related your request.
Sincerely,
Peter Chisholm
Acting Chief, Disclosure Division
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page
Exhibit
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
Case No. 17-0600-CKK
DECLARATION CHRIS FEDELI
Pursuant U.S.C. 1746, Chris Fedeli, declare follows: attorney with Judicial Watch, Inc. and counsel for Plaintiff the above-
captioned matter. over the age eighteen and have personal knowledge the matters set forth
below. examined the pages records Defendant released responsive this
litigation and determined that all records were dated March 2015, and that none the
pages records pre-date March 2015.
The original signed version this document the possession the undersigned. declare under penalty perjury that the foregoing true and correct. Executed
Washington, this 13th day March, 2018. Chris Fedeli
Chris Fedeli
Case 1:17-cv-00600-CKK Document 16-1 Filed 03/13/18 Page
Exhibit
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Exhibit
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Exhibit
2/26/2018
Notice toCase 1:17-cv-00600-CKK Document 16-1 Framework Bureau Alcohol Tobacco,
those Commenting the Armor Piercing Ammunition Exemption Filed 03/13/18 Page Firearms and Explosives
Contact: Public Affairs Division
202-648-8500
www.atf.gov/
For Immediate Release
Tuesday, March 10, 2015
Notice those Commentin~ the Annor Piercing Ammunition
Exemption Framework
Thank you for your interest ATFs proposed framework for determining whether certain projectiles are
primarily intended for sporting purposes within the meaning U.S.C. 921(a)(17)(C). The informal
comment period will close Monday, March 16, 2015. ATF has already received more than 80,000
comments, which will made publicly available soon practicable.
Although ATF endeavored create proposal that reflected good faith interpretation the law and
balanced the interests law enforcement, industry, and sportsmen, the vast majority the comments
received date are critical the framework, and include issues that deserve further study. Accordingly,
ATF will not this time seek issue final framework. After the close the comment period, ATF will
process the comments received, further evaluate the issues raised therein, and provide additional open and
transparent process (for example, through additional proposals and opportunities for comment) before
proceeding with any framework.
###
Field Division: Headquarters
https://www.atf.gov/news/pr/notice-those-commenting-armor-piercing-ammunition-exemption-framework
1/2
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Exhibit
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Exhibit
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