Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 1 of 15

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1 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al. ) ) Plaintiffs, ) CIVIL ACTION NO. ) 11-CA-360-OLG-JES-XR v. ) [Lead case] ) STATE OF TEXAS, et al. ) ) Defendants. ) MOTION FOR RECONSIDERATION BY THE THREE-JUDGE COURT Pursuant to 28 U.S.C. 2284(b)(3), Defendants the State of Texas and Secretary of State Nandita Berry (collectively, State Defendants ) move for reconsideration by the three-judge court of the May 6, 2014, Order granting, in part, the United States Motion to Compel the Production of Legislative Documents. 1 For the reasons stated below, and for the reasons stated in the State Defendants response in opposition, the United States motion should be denied. In the requests for production that formed the basis of its Motion to Compel, the United States through Federal Rule of Procedure 34 sought to obtain documents in the possession of legislators, legislative staff, and the Texas Legislative Council ( TLC ). As the Court recognized in its May 6 Order, Rule 34 is limited to requests served on another party to produce items in the responding 1 28 U.S.C. 2284(b)(3) ( Any action of a single judge may be reviewed by the full court at any time before final judgment. ). 1

2 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 2 of 15 party s possession, custody, or control. Fed. R. Civ. P. 34(a). In concluding that the United States requests satisfied these requirements, the May 6 Order makes two critical errors. First, the Order treats numerous non-parties as parties to this litigation. Second, the Order determines that the Texas Office of the Attorney General ( OAG ) has control over documents in the custody of any non-party who has requested legal representation by the OAG. 2 As a result, the Order effectively requires the State Defendants to obtain and produce documents and communications from every member of the Legislature, including Plaintiffs in this case, as well as independent agencies in separate branches of State government. 3 The initial phase of this litigation was conducted under extreme time pressure. The plaintiffs petitions were filed between May and July of 2011; discovery was conducted in July and August; and the case was tried in early September. As a matter of practical necessity, the parties, including the State Defendants, went beyond their obligations under the Federal Rules of Civil Procedure in the early phases of discovery. This does not amount to a waiver by any party of the Rules regarding party and non-party discovery. 4 2 The 23 legislators and staff who have requested representation from the OAG are Jose Aliseda, Jimmie Don Aycock, Dan Branch, Ryan Downton, Rob Eissler, Charlie Geren, Larry Gonzales, Patricia Harless, Linda Harper-Brown, Harvey Hilderbran, Todd Hunter, Gerardo Interiano, J.M. Lozano, Jerry Madden, Dee Margo, Aaron Pena, Larry Phillips, Connie Scott, Wayne Smith, Burt Solomons, Joe Strauss, Raul Torres, and Beverly Woolley. 3 This would include Representative Jessica Farrar, Representative Eddie Rodriguez, and members of the Mexican American Legislative Caucus. 4 Nor is it relevant, for purposes of the United States motion to compel, that the State Defendants sought and obtained the dismissal of Speaker Joe Straus from this litigation. See Order at 2. In seeking the dismissal of Speaker Straus and Lieutenant Governor David Dewhurst, the State Defendants explained that the plaintiffs had not 2

3 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 3 of 15 I. Compelling The State Defendants To Produce Documents From Non-Party Legislators And Agencies Is Not Consistent With The Federal Rules Or The Structure of Texas Government. The May 6 Order concludes that the State Defendants obligation to produce responsive documents under Rule 34 extends to documents simultaneously possessed or controlled by both the State and the individual legislators, documents or electronically stored information ( ESI ) in the TLC s possession, and ESI contained on official state government servers. Order at 2-3. Expanding the State Defendants discovery obligations to non-party legislators, agencies, and legislative staff is inconsistent with the Federal Rules and the structure of Texas government. The May 6 Order does not define the scope of the State of Texas as a party, but it effectively treats numerous non-parties including the OAG, legislators, legislative staff, and the TLC as parties to this litigation for purposes of discovery. None of these entities are parties. This distinction is critical because, as the May 6 Order recognizes, party discovery is governed by Rule 34, and non-party discovery is conducted through Rule 45 subpoenas. Fed. R. Civ. P. 34(c) ( As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. ). Requiring the State Defendants to obtain and produce responsive ESI contained on official government servers could potentially implicate electronic materials retained by any governmental entity or employee, regardless of their proven that either individual caused or had the power to redress their alleged injuries. The fact that these officials were dismissed based on the jurisdictional requirements of Article III does not bear on the question whether documents in the possession of non-parties are under the State Defendants control. 3

4 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 4 of 15 party status or relationship to this litigation. This is not a hypothetical parade of horribles. The Texas Latino Redistricting Task Force Plaintiffs ( TLRTF ) have already informed the State Defendants that they interpret the May 6 Order to apply to TLRTF s discovery requests (which are broader and more comprehensive than those served by DOJ) and that any responsive production should include documents and ESI stored on State servers regardless whether the Texas Attorney General s Office represents the individual who produced that document. See Letter from N. Perales to P. Sweeten, attached as Exhibit A (emphasis added). Furthermore, recent subpoenas from the Department of Justice ( DOJ ) propose searching for broad terms such as coalition and split, which will likely include numerous documents unrelated to redistricting. In Texas, the OAG, the Secretary of State, the Legislature, and the TLC are all separate and distinct agencies. The OAG and the Secretary of State are members of a non-unitary executive branch. Tex. Const. art. VI, 1. The OAG is specifically charged with representing state agencies in litigation. Tex. Const. art. IV, 22. The Texas Legislature is part of the legislative branch. Tex. Const. art. III, 1. The Legislature is not a party, nor are individual legislators or staff members. The legislative branch includes independent legislative agencies, including the TLC. Tex. Gov t Code Ann The TLC is also not a party. Independent agencies and the State s legislative body cannot be conflated into a single party for purposes of discovery. 5 5 Cf. United States v. Davis, 140 F.R.D. 261, 263 (D.R.I. 1992) ( Generator defendants apparently perceive the plaintiff, the United States, in very broad terms. In this instance, the 4

5 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 5 of 15 The May 6 Order reflects a misperception of the services TLC provides to the Legislature with respect to data maintenance. The TLC provides the equivalent of information-technology services to the Legislature, but it is not an agency subject to the control of the Legislature. The TLC information systems division provides computer support services to the legislative branch of Texas government, including legislators and their administrative offices, the Texas Legislative Council, the Legislative Reference Library, the State Auditor's Office, the Legislative Budget Board, and the Sunset Advisory Commission. See (Last accessed May 7, 2014). However, individual legislators remain the legal owners and custodians of their documents and s. See Tex. Att y Gen. Open Records Decision (July 12, 2004) (explaining that TLC is not the proper recipient for open records requests for documents belonging to legislators, committees, or other legislative agencies because TLC s services include the maintenance of computer mainframe and network resources ). 6 TLC is the owner and custodian of only those communications sent or received by employees of the council, and is not the owner or custodian of communications sent or received by other entities to which the council provides support. Id. Department of Justice and the EPA are the executive agencies involved. Generator defendants want information from a subcommittee of the House of Representatives. This is not a question of a different executive agency; this in fact is an entirely separate branch of the federal government. ) (emphasis added); see also In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 117 F.R.D. 392, 393 (N.D. Tex. 1987) (finding that the United States, as a party, could not be required to produce materials from non-party National Transportation Safety Board (NTSB) because the NTSB is an entirely autonomous entity, not subject to any other executive agency and thus Rule 45 was the only appropriate means for such discovery). 6 Available at /pdf/or pdf. 5

6 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 6 of 15 The May 6 Order conflicts with the order entered by the court in Veasey v. Texas, which involves substantially similar parties (DOJ and the State of Texas) and discovery issues. See Veasey v. Perry, No. 2:13-CV-193, 2014 WL , at *1 (S.D. Tex. 2014). On a similar motion to compel by the Department of Justice, the Veasey court correctly determined that neither the OAG nor individual legislators are parties merely because the State of Texas is named as a defendant. Id. It also ruled that the TLC is an independent agency separate from the State of Texas, and that TLC documents must be obtained by Rule 45 subpoena. Id. 7 II. The State Defendants Lack Possession, Custody, or Control of the Documents Sought by the United States. The May 6 Order also errs in concluding that the documents sought by the United States are within the possession, custody, or control of a party to this litigation. In finding that the State Defendants have control over the requested materials, the Court relies on the State Defendants practical ability to obtain ESI stored on government servers and also on the OAG s representation of certain legislators and legislative staff. Neither ground provides a basis for subjecting nonparties to discovery under Rule 34. The May 6 Order implies that the practical ability standard is settled law, but this is not the case. The Fifth Circuit has not adopted this standard in 7 Since filing its motion to compel in this case, the United States has served subpoenas duces tecum on numerous legislators, legislative staff, and TLC employees who are represented by the OAG. As the OAG indicated it would do since last November (see Defendants Response to the United States Motion to Compel Legislative Documents (ECF No. 978), Exh. 1), the OAG has facilitated these discovery efforts by accepting service of subpoenas on behalf of certain targeted individuals and cooperating with DOJ to provide responsive documents in the possession, custody, or control of these individuals. 6

7 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 7 of 15 determining whether a non-party s documents are under the control of a party for purposes of discovery. Other courts of appeals have rejected the practical ability standard, instead examining whether the party has the legal right to obtain documents on demand from the non-party. See, e.g., In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999) (finding that the legal control test is the proper standard under Rule 45, and recognizing that [o]rdering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents ); Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, (7th Cir. 1993) (party did not have custody or control over requested materials because they could not order [the non-party] to surrender the materials to them); Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984) ( Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand. ); cf. Cadle Co. v. Terrell, No. 4:01-CV-0399-E, 2002 WL at *5 (N.D. Tex. Jan. 7, 2002) (individual was required to produce credit card records and bank statements in the possession of third-party financial institutions because he had the legal right to request and obtain these documents). 8 8 Rosie D. v. Romney, 256 F. Supp. 2d 115, 119 (D. Mass. 2003), cited by the Court in its May 6, 2014 Order, similarly concludes that the concept of control exists where a party has a legal right to obtain documents. There, the court found that the state s Division of Medical Assistance (DMA) had control over documents in the possession of non-party health service entities because contractual provisions granted DMA the right to examine and copy materials in these entities possession. Id. In the current case, the United States has made no claim (nor can it) that legislators or legislative staff would be legally required to turn over its records to the OAG upon demand. Thus, Rosie D. does not support the conclusion the State had control over documents in the possession of non-parties. 7

8 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 8 of 15 reflects that: The legal-control approach to Rule 34 discovery requests appropriately [T]he fact that a party could obtain a document if it tried hard enough and maybe if it didn t try hard at all does not mean that the document is in its possession, custody, or control; in fact it means the opposite. Chaveriat, 11 F.3d at This standard is particularly prudent here, where the United States seeks to compel the OAG to produce legislative materials in the possession of independent entities and officers from a different branch of state government. Cf. Resolution Trust Corp. v. Deloitte & Touche, 145 F.R.D. 108, 110 (D. Colo. 1992) (documents in the possession of the Office of Thrift Supervision (OTS) were determined to be under the control of the Resolution Trust Corporation (RTC) for Rule 34 discovery because federal law expressly provided RTC the absolute and unrestricted ability to obtain OTS documents on demand when RTC was appointed as receiver). 9 Additionally, the May 6 Order erroneously concludes that the OAG s representation of 23 legislators and staff members gives the OAG control over their documents. As an initial matter, this conclusion misunderstands the nature of the OAG s relationship with the legislators and legislative staff whom it represents. 9 In addition to Rosie D., the other cases cited in support of the practical ability test stand in sharp contrast to the current circumstances. For example, in In re NTL, Inc. Secs. Litigation, 244 F.R.D. 179, (S.D.N.Y. 2007), the party and non-party companies at issue there had emerged from another company s bankruptcy and were subject to document-sharing clauses in a series of agreements. Likewise, in Shell Global Solutions (US) Inc. v. RMS Engineering, Inc., No , 2011 WL , at *2 (S.D. Tex. Aug. 3, 2011), the Court analyzed whether the practical ability test was satisfied in the case of affiliated companies, based on factors such as commonality of ownership, exchange or intermingling of directors, officers or employees of the two corporations, and exchange of documents between the corporations in the ordinary course of business. 8

9 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 9 of 15 The OAG s service as legal counsel to legislators, legislative staff, and TLC employees for purposes of this litigation does not transform those individuals into parties. The Federal Rules impose discovery obligations on the party, not the attorney. See, e.g., Fed. R. Civ. P. 34(a) ( A party may serve on any other party a request within the scope of Rule 26(b).... ) (emphasis added). There is no support for a general rule that an attorney is presumed to have control over documents in its client s possession. Order at 3 (citing Chevron Corp. v. Salazar, 275 F.R.D. 437, (S.D.N.Y. 2011); Am. Soc y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006)). In Salazar, the court applied the practical ability standard to conclude that documents in one attorney s possession were under the control of another attorney; however, the Court acknowledged that it was unable to identify any case law illuminating the possession, custody or control standard in the situation of documents in an attorney s possession. And in Ringling Brothers, the court concluded that clients had control over documents in their attorneys possession because the clients had the legal right and ability to access the documents. In this case, the legislators and the TLC retain custody and control over their respective documents. As their attorney, the OAG does not have a separate or superior right to custody or control. An attorney can represent different entities, one of which is a party to the litigation and one of which is a non-party. The mere fact that the OAG represents parties (the State Defendants) and non-party 9

10 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 10 of 15 legislators and legislative staff does not transfer custody or control of documents between the party and the non-party (or create any presumption that OAG or another party controls the non-party s documents). See, e.g., In re Terrorist Attacks on September 11, 2001, 293 F.R.D. 539, 547 (S.D.N.Y. 2013); Kendall State Bank v. W. Point Underwriters, LLC, No , 2011 WL , at *2 3 (D. Kan. Nov. 9, 2011); see also Nissei America, Inc. v. Cincinnati Milacron, Inc., 95 F.R.D. 471, 475 (N.D.Ill.1982) (denying a party s discovery request for information related to the affairs of other clients represented by [the responding party s] attorney because such information was beyond the responding party s control) 10. As counsel for the State Defendants, who are parties, the OAG has provided documents according to normal party discovery procedures. As counsel for nonparty legislators, legislative staff, and TLC, the OAG remains willing to facilitate non-party discovery as contemplated by Rules 34 and 45. CONCLUSION For the foregoing reasons, and for the reasons stated in its response in opposition, the State Defendants respectfully request that the three-judge court deny the United States Motion to Compel the Production of Legislative Documents. 10 See also Poppino v. Jones Store Co., 1 F.R.D. 215, 219 (W.D.Mo.1940) ( [T]he mere fact... that the attorney for a party has possession of a document does not make his possession of the document the possession of the party. The paper may be one of his private papers which he had before the relation of attorney and client was established. It is inconceivable that he should be required to produce such a paper for the inspection of his client s adversary. The paper which he has in his possession may be the property of some other client. It is inconceivable that he should be compelled to produce the document belonging to another client because the adversary of one of his clients demands it. ). 10

11 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 11 of 15 Dated: May 9, 2014 Respectfully submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General /s/ Patrick K. Sweeten PATRICK K. SWEETEN Chief, Special Litigation Division Texas State Bar No P.O. Box 12548, Capitol Station Austin, TX (512) (512) (fax) ATTORNEYS FOR THE STATE OF TEXAS AND NANDITA BERRY CERTIFICATE OF CONFERENCE I certify that I conferred with counsel via on May 9, Counsel oppose this Motion. /s/ Patrick K. Sweeten PATRICK K. SWEETEN 11

12 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 12 of 15 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent on May 9, 2014 via the Court s electronic notification system and/or to the following counsel of record: DAVID RICHARDS Richards, Rodriguez & Skeith LLP 816 Congress Avenue, Suite 1200 Austin, TX davidr@rrsfirm.com RICHARD E. GRAY, III Gray & Becker, P.C. 900 West Avenue, Suite 300 Austin, TX / (facsimile) Rick.gray@graybecker.com ATTORNEYS FOR PLAINTIFFS PEREZ, DUTTON, TAMEZ, HALL, ORTIZ, SALINAS, DEBOSE, and RODRIGUEZ JOSE GARZA Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas garzpalm@aol.com MARK W. KIEHNE RICARDO G. CEDILLO Davis, Cedillo & Mendoza McCombs Plaza 755 Mulberry Ave., Ste. 500 San Antonio, TX / (facsimile) mkiehne@lawdcm.com rcedillo@lawdcm.com GERALD H. GOLDSTEIN DONALD H. FLANARY, III Goldstein, Goldstein and Hilley 310 S. St. Mary s Street San Antonio, TX / (facsimile) ggandh@aol.com donflanary@hotmail.com PAUL M. SMITH, MICHAEL B. DESANCTIS, JESSICA RING AMUNSON Jenner & Block LLP 1099 New York Ave., NW Washington, D.C J. GERALD HEBERT 191 Somervelle Street, # 405 Alexandria, VA hebert@voterlaw.com JESSE GAINES P.O. Box Fort Worth, TX gainesjesse@ymail.com ATTORNEYS FOR PLAINTIFFS QUESADA, MUNOZ, VEASEY, HAMILTON, KING and JENKINS LUIS ROBERTO VERA, JR. Law Offices of Luis Roberto Vera, Jr Riverview Towers San Antonio, Texas lrvlaw@sbcglobal.net 12

13 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 13 of 15 JOAQUIN G. AVILA P.O. Box Seattle, WA / (facsimile) ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS NINA PERALES MARISA BONO Mexican American Legal Defense and Education Fund 110 Broadway, Suite 300 San Antonio, TX / (facsimile) MARK ANTHONY SANCHEZ ROBERT W. WILSON Gale, Wilson & Sanchez, PLLC 115 East Travis Street, Ste San Antonio, TX / (facsimile) ATTORNEYS FOR TEXAS LATINO REDISTRICTING TASK FORCE, CARDENAS, JIMENEZ, MENENDEZ, TOMACITA AND JOSE OLIVARES, ALEJANDRO AND REBECCA ORTIZ JOHN T. MORRIS 5703 Caldicote St. Humble, TX JOHN T. MORRIS, PRO SE GEORGE JOSEPH KORBEL Texas Rio Grande Legal Aid, Inc North Main San Antonio, TX ATTORNEYS FOR INTERVENOR- PLAINTIFF LEAGUE OF UNITED LATIN AMERICAN CITIZENS ROLANDO L. RIOS Law Offices of Rolando L. Rios 115 E Travis Street, Suite 1645 San Antonio, TX rrios@rolandorioslaw.com ATTORNEY FOR INTERVENOR- PLAINTIFF HENRY CUELLAR GARY L. BLEDSOE Law Office of Gary L. Bledsoe 316 W. 12 th Street, Ste. 307 Austin, TX / (facsimile) garybledsoe@sbcglobal.net ATTORNEY FOR INTERVENOR- PLAINTIFFS TEXAS STATE CONFERENCE OF NAACP BRANCHES, TEXAS LEGISLATIVE BLACK CAUCUS, EDDIE BERNICE JOHNSON, SHEILA JACKSON- LEE, ALEXANDER GREEN, HOWARD JEFFERSON, BILL LAWSON, and JUANITA WALLACE 13

14 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 14 of 15 MAX RENEA HICKS Law Office of Max Renea Hicks 101 West Sixth Street Suite 504 Austin, TX /512/ (facsimile) ATTORNEY FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, MILTON GERARD WASHINGTON, and SANDRA SERNA STEPHEN E. MCCONNICO SAM JOHNSON S. ABRAHAM KUCZAJ, III Scott, Douglass & McConnico One American Center 600 Congress Ave., 15th Floor Austin, TX / (facsimile) ATTORNEYS FOR PLAINTIFFS CITY OF AUSTIN, TRAVIS COUNTY, ALEX SERNA, BALAKUMAR PANDIAN, BEATRICE SALOMA, BETTY F. LOPEZ, CONSTABLE BRUCE ELFANT, DAVID GONZALEZ, EDDIE RODRIGUEZ, ELIZA ALVARADO, JOSEY MARTINEZ, JUANITA VALDEZ-COX, LIONOR SOROLA- POHLMAN, MILTON GERARD WASHINGTON, NINA JO BAKER, and SANDRA SERNA KAREN M. KENNARD 2803 Clearview Drive Austin, TX (512) / (facsimile) ATTORNEY FOR PLAINTIFF CITY OF AUSTIN VICTOR L. GOODE Asst. Gen. Counsel, NAACP 4805 Mt. Hope Drive Baltimore, MD / (facsimile) ATTORNEY FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES ROBERT NOTZON 1507 Nueces Street Austin, TX / (facsimile) ALLISON JEAN RIGGS ANITA SUE EARLS Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC / (facsimile) ATTORNEYS FOR TEXAS STATE CONFERENCE OF NAACP BRANCHES, EARLS, LAWSON, WALLACE, and JEFFERSON DONNA GARCIA DAVIDSON PO Box Austin, TX / (facsimile) ATTY FOR DEFENDANT STEVE MUNISTERI CHAD W. DUNN K. SCOTT BRAZIL Brazil & Dunn 4201 FM 1960 West, Suite

15 Case 5:11-cv OLG-JES-XR Document 991 Filed 05/09/14 Page 15 of 15 DAVID ESCAMILLA Travis County Asst. Attorney P.O. Box 1748 Austin, TX (512) ATTORNEY FOR PLAINTIFF TRAVIS COUNTY Houston, TX / (facsimile) ATTORNEYS FOR INTERVENOR- DEFS TEXAS DEMOCRATIC PARTY and BOYD RICHIE ROBERT L. PITMAN, JOCELYN SAMUELS, T. CHRISTIAN HERREN, JR., TIMOTHY F. MELLETT, BRYAN SELLS, JAYE ALLISON SITTON DANIEL J. FREEMAN MICHELLE A. MCLEOD U.S. Department of Justice Civil Rights Division, Voting Rights Room 7254 NWB 950 Pennsylvania Avenue, N.W. Washington, D.C (202) ; (202) ATTORNEYS FOR THE UNITED STATES /s/ Patrick K. Sweeten PATRICK K. SWEETEN 15