Straughter v. United States

ORIGINAL

am the filim’teh étateg @uurt of erberal @IaimEII-ED

No. 14-565C

FEB 2‘ 0 2015

(Flled: February 20, 2015) U.S_ COURT OF

FEDERAL CLAIMS

********************************** ) pay claim; time_bar attributable

) to expiration of the limitations period

WILLIAM E. STRAUGHTER, ) specified in 28 U. S.C. § 2501; inability

) to transfer case under 28 U.S.C. § 1631

Plaintiff, ) because of request for monetary relief

)

v. )

)

UNITED STATES, )

)

Defendant. )

****$********$$$$$$$$$$$$$$$$$$$$$ ;

William E. Straughter, pro se, Long Beach, California.

Joshua D. Schnell, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, DC, for defendant. With him on the brief

were Joyce R. Branda, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director,

and Martin F. Hockey, Assistant Director, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, DC.

OPINION AND ORDER

LETTOW, Judge.

Plaintiff, William E. Straughter, seeks review of a decision by the Air Force Board for

Correction of Military Records (“Correction Board” or “the Board”) denying him reinstatement

in the United States Air Force (“Air Force”). Mr. Straughter contends that the Board’s decision

was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Pending

before the court is the government’s motion to dismiss for lack of subject matter jurisdiction and

failure to state a claim upon which relief may be granted pursuant to Rules 12(b)(1) and 12(b)(6)

of the Rules of the Court of Federal Claims (“RCFC”), and, in the alternative, a motion for

judgment upon the administrative record pursuant to RCFC 52.1.

FACTS1

Mr. Straughter served in the Air Force for over 17 years, from 1972 until his honorable

discharge in 1989. Compl. at 2, 4. The case now before the court ostensibly arises from events

that occurred in 1987, prior to the end of his last enlistment period. Compl. at 4. At that time,

Mr. Straughter allegedly received by mail a preapproved application for a credit card from

Military and Professional Service Organization (“MPSO”) listing his name, address, and

rank and requesting that he supply some additional personal information including his social

security number, phone number, and date of birth, and return the application. Compl. at 2.

Mr. Straughter completed the application but neglected to change the rank listed from “0-2” (1 st

Lieutenant) to “E-5” (Staff Sergeant), his correct rank. Compl. at 2; see also AR 11.2 He

alleges that he did not submit the application but rather placed it in his desk drawer, where it

remained forgotten for a few months until he eventually cleaned his desk and discarded it.

Compl. at 2. On June 3, 1988, Mr. Straughter was notified that the application had been

presented to his commander, who planned to impose nonjudicial punishment against him under

Article 15 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 815,3 for his

impersonation of an officer or agent of superior authority under 10 U.S.C. § 934 (“Article 134”).

Compl. at 2.4 Ultimately, on July 5, 1988, his commander found that Mr. Straughter attempted

to wrongfully and willfully impersonate a commissioned officer and “imposed a punishment of

“Fr —_

1The court’s findings of fact are based on the Administrative Record of the proceedings

before the Correction Board. See Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir,

2005) (“[T]he [c]ourt . . . is required to make factual findings under [what is now RCFC 52.1]

from the record evidence as if it were conducting a trial on the record”).

2“ARE _ _;’ refers to the Administrative Record, ECF No. 9-1, filed by the government

pursuant to RCFC 52. 1 (a).

3Nonjudicial punishment refers to specific limited punishment which may be awarded for

minor disciplinary offenses by a commanding officer or superior to members of the pertinent

command. In the Air Force, such punishment is termed “Article 15” in reference to Article 15 of

the UCMJ, which, along with Part V of the Manual for Courts-Martial, constitutes the basic law

governing procedures for nonjudicial punishment. See AR 28 (“Fact Sheet Article 15

Information”).

4Article 134 is a general article that provides in pertinent part:

Though not specifically mentioned in this chapter, all disorders and neglects to

the prejudice of good order and discipline in the armed forces, all conduct of a

nature to bring discredit upon the armed forces, and crimes and offenses not

capital, of which persons subject to this chapter may be guilty, shall be taken

cognizance of by a general, special, or summary court-martial, according to the

nature and degree of the offense, and shall be punished at the discretion of that

court.

10 U.S.C. § 934,,

reduction in grade from staff sergeant to sergeant [sic — senior airman (E-4)] with extra duty for

3 hours a day for 14 days.” Compl. at 3-4. Thus, then-Staff Sergeant Straughter was found to

have violated 10 U.S.C. § 880 (Attempts), not Article 134. Compl. at 3; see also AR 2.

Subsequently, despite the fact that Mr. Straughter’s supervisor recommended him for

reenlistment, on December 30, 1988, due to the nature and outcome of his Article 15 offense,

Mr. Straughter’s commander did not select him. Compl. at 4; see also AR 2. Mr. Straughter

appealed his commander’s decision to the Deputy Assistant Secretary of Manpower, Resources

& Military Personnel but his appeal was denied and he was honorably discharged from the Air

Force on July 10, 1989. Compl. at 4; see also AR 3.

On July 26, 1995, Mr. Straughter sought review by the Air Force Board for Correction of

Military Records, requesting reinstatement so he could serve 20 years before retiring. Compl. at

4-5; see Def.’s Mot. to Dismiss and, in the Alternative, Mot. for Judgment upon the Admin.

Record (“Def’s Mot”) at 2, ECF No. 10. The basis for Mr. Straughter’s request was his belief

that the denial of his right to reenlist constituted double jeopardy under the Fifth Amendment

because he had already received non-judicial punishment for the same Article 15 offense.

Compl. at 4-5; see also Def.’s Mot at 2—3. His request was denied. AR 5 (Record Proceedings

by Board (Aug. 28, 1996)). In its decision, the Board explained that Mr. Straughter’s double

jeopardy argument lacked merit because “[t]he same offense may give rise both to action under

the military justice system and administrative action . . . without triggering the constitutional

prohibition on double jeopardy.” AR 4. One member of the Board voted to grant but did not

submit a minority report. AR 5. "

In October 2012, Mr. Straughter asked the Board to reconsider his request for

reinstatement. Def.’s Mot. at 3 (citing AR 47 (Letter from Michael F. LoGrande, Executive

Director, Air Force Board for Correction of Military Records (Mar. 26, 2013))). On March

26, 2013, the Board denied his request on the grounds that Mr. Straughter failed to present

any newly discovered relevant evidence. Id. The following month, on April 23, 2013,

Mr. Straughter again appealed to the Board, citing the additional facts that the credit card

application that prompted the incident in 1987 had never been submitted or signed. Compl. at 5.

The Board denied Mr. Straughter’s request, noting that “reconsideration of a previously denied

application is authorized only where newly discovered relevant evidence is presented which was

not reasonably available when the application was originally submitted.” AR 75.

Mr. Straughter filed his complaint in this court on July 2, 2014. Compl. at 1.

Mr. Straughter requests declaratory relief, or, in the alternative, injunctive relief, in addition to

monetary damages, including “all back pay[] and future military retirement entitlements” of an

amount “exceeding $10,000.” Compl. at 1, 8. The government has filed a motion to dismiss for

lack of subject matter jurisdiction and, in the alternative, a motion for judgment upon the

administrative record. Def.’s Mot. at 1.

ANALYSIS

A. Subject Matter Jurisdiction

Before addressing the merits, a “court must satisfy itself that it has jurisdiction to hear

and decide a case.” Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004) (quoting

PIN/NIP, Inc. v. Platte Chem. Co, 304 F.3d 1235, 1241 (Fed. Cir. 2002) (citing View Eng ’g, Inc.

v. Robotic Vision Sys, Inc., 115 F.3d 962, 963 (Fed. Cir. 1997))). In evaluating a motion to

dismiss for lack of subject matter jurisdiction, the court will ordinarily “consider the facts alleged

in the complaint to be true and correct.” Reynolds v. Army & Air Force Exch. Serv., 846 F.2d

746, 748 (Fed. Cir. 1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Air Prod. &

Chems., Inc. v. Reichhold Chems., Inc., 755 F.2d 1559, 1562 n.4 (Fed. Cir. 1985)). However,

when the court’s subject matter jurisdiction has been called into question by a motion filed under

RCFC 12(b)(1), the burden of establishing the court’s jurisdiction rests upon the party seeking to

invoke it, McNutt v. Gen. Motors Acceptance Corp. of 1nd,, 298 U.S. 178, 189 (1936), and this

burden must be proven by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citing

Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969) (quoting McNutt, 298 U.S. at 189, and

citing Jascourt v. United States, 521 F.2d 1406 (Ct. C1. 1975))).

Mr. Straughter premises this court’s jurisdiction on the Tucker Act. Compl. at 1. The

Tucker Act grants this court “jurisdiction to render judgment upon any claim against the United

States founded either upon the Constitution, or any Act of Congress or any regulation of an

executive department, or upon any express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 149l(a)(1).

However, the Tucker Act alone does not create a substantive right to relief. See United States v.

Testan, 424 U.S. 392, 398 (1976); Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed. Cir.

2003) (en banc). Rather, “[a] substantive right must be found in some other source of law.”

United States v. Mitchell, 463 U.S. 206, 216 (1983) (en banc). In essence, the Tucker Act waives

the government’s sovereign immunity with respect to claims deriving from a money-mandating

source of law. See Testan, 424 U.S. at 400-01. Accordingly, to establish that this court has

subject matter jurisdiction under the Tucker Act, the plaintiff must first point to an independent,

substantive source of law that mandates payment from the United States for the injury suffered.

Id. at 400; see also Ferreiro v. United States, 501 F.3d 1349, 1351—52 (Fed. Cir. 2007) (quoting

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part)).

Although not directly invoked by Mr. Straughter, the Military Pay Act, codified at 37

U.S.C. § 204, serves as the independent, money-mandating provision that enables him to bring

his wrongful discharge claim within the court’s Tucker Act jurisdiction. See Martinez, 333 F.3d

at 1303 (“In the context of military discharge cases, the applicable ‘money-mandating’ statute

that is generally invoked is the Military Pay Act, 37 U.S.C. § 204 . . . . [A] plaintiff therefore

must allege that, because of the unlawful discharge, the plaintiff is entitled to money in the form

of the pay that the plaintiff would have received but for the unlawful discharge”). In monetary

actions brought under the Tucker Act, this court has the authority to review the actions of

correction boards and grant relief if the court finds that the correction board’s decision was

“arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Id. at 1314

(citing Porter v. United States, 163 F.3d 1304, 1311 (Fed. Cir. 1998); Armstrong v. United

States, 205 Ct. Cl. 754, 761 (1974)).

In this instance, although the court would ordinarily have authority to adjudicate

Mr. Straughter’s claims, see Mitchell v. United States, 930 F.2d 893, 896 (Fed. Cir. 1991)

(noting that this court has “extensive experience reviewing decisions of correction[] boards in

military pay cases”), it must consider the effect of the applicable statute of limitations. Under 28

U.S.C. § 2501, claims under the Tucker Act are subject to a six-year statute of limitations, and

that limitation serves as a condition of the government’s waiver of sovereign immunity and

constitutes a jurisdictional requirement. See John R. Sand & Gravel Co. v. United States, 552

US. 130 (2008). Section 2501 provides that “[e]very claim of which the United States Court of

Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years

after such claim first accrues.” 28 U.S.C. § 2501. A claim first accrues “when all the events

have occurred that fix the alleged liability of the government and entitle the claimant to institute

an action.” Ingram v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009); see also Oceanic SS.

Co. v. United States, 165 Ct. Cl. 217, 225 (1964). In a wrongful discharge case, a cause of action

for back pay accrues at the time of discharge. See Martinez, 333 F.3d at 1314. Mr. Straughter

was honorably discharged on July 10, 1989, almost twenty-five years before he filed his

complaint on July 2, 2014. Compl. at 4. Because Mr. Straughter did not file his complaint

within the six—year statute of limitations period, the court does not possess jurisdiction to

entertain his claims. See John R. Sand, 552 US. at 133—34 (holding that the Tucker Act’s statute

of limitations falls under the category of an “absolute [] kind of limitations period” and cannot be

tolled or waived by equitable considerations); see also Young v. United States, 529 F.3d 1380,

1384 (Fed. Cir. 2008) (applying John R. Sand in a military discharge case brought under the

Tucker Act and 37 U.S.C. § 204).

Notably, Mr. Straughter’s resort to the Correction Board does not influence or affect the

date of accrual of his claims. In Martinez, the Federal Circuit addressed a similar circumstance

where a plaintiff sought both reinstatement and an award of lost pay after a correction board

refused to expunge an Article 15 proceeding from his military record and void his discharge

from active duty. 333 F.3d 1295. Declining to overrule its decision in Hurick v. Lehman, 782

F.2d 984 (Fed. Cir. 1986),5 the Federal Circuit emphasized that requests made to correction

boards are regarded as permissive administrative remedies and are not mandatory prerequisites to

filing suit under the Tucker Act for wrongful discharge. See Martinez, 333 F.3d at 1306

(“Congress did not authorize postponement of the running of the limitations period while

optional administrative remedies were being exhausted”). The court explained,

At the time of his separation, [the plaintiff] had a right to sue for improper

discharge and to obtain money if he could prove his case. At the time the

correction board acted, he still had that right. The injury caused by the separation

was not altered or exacerbated by the correction board action.

Id. at 1314. Therefore, the fact that Mr. Straughter first sought a decision by the Board and then

reconsideration of the Board’s decision prior to filing a case in this court has no bearing on the

date of accrual of his claims. The date of his discharge is the proper date of accrual because that

was the date “when all the events [had] occurred that fix[ed] the alleged liability of the

5The court in Hurick held that the proper date of accrual of a wrongful discharge claim

brought by a former serviceman of the Navy was the date of discharge. 782 F.2d at 986.

5

government and entitle[d] [him] to institute an action.” Ingrum, 560 F.3d at 1314; see also

Martinez, 333 F.3d at 1314.

In sum, the court does not have jurisdiction over Mr. Straughter’s claims.6

B. Possibility of Transfer

While dismissal is typically required as a matter of law if a court lacks jurisdiction to

decide the merits of a case, see Johnson v. United States, 105 Fed. C1. 85, 91 (2012), under

certain circumstances, the court may transfer the action to a federal court that would have

jurisdiction, see Gray v. United States, 69 Fed. C1. 95, 98 (2005). Pursuant to 28 U.S.C. § 1631,

transfer of a case is appropriate if “(1) the transferor court lacks jurisdiction; (2) the action could

have been brought in the transferee court at the time it was filed; and (3) transfer is in the interest

ofjustice.” Zoltek Corp. v. United States, 672 F.3d 1309, 1314 (Fed. Cir. 2012); see also

Christianson v. Colt Indus. Operating Corp, 486 US. 800, 819 (1988); Skillo v. United States,

68 Fed. Cl. 734, 744 (2005) (citing Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir. 1989);

Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed. Cir. 1988); Sodexho Marriott Mgmt.,

Inc. v. United States, 61 Fed. Cl. 229, 241 (2004)).7

The first and third elements required for transfer are satisfied here. First, the court has

established that it lacks jurisdiction to hear Mr. Straughter’s claims because they are time-barred.

Additionally, transfer would be in the interest of justice because Mr. Straughter has not yet had

an opportunity to have his claims heard by a court on the merits. See Galloway Farms, Inc. v.

United States, 834 F.2d 998, 1000 (Fed. Cir. 1987) (“The phrase ‘if it is in the interest of justice’

relates to claims which are nonfrivolous and as such should be decided on the merits”) (citing

Zinger Constr. Co. v. United States, 753 F.2d 1053, 1055 (Fed. Cir. 1985)); cf Johnson, 105

Fed. Cl. 85 (declining to transfer case where the plaintiff had already brought two actions in the

3: _ _

6Given the resolution of Mr. Straughter’s claims on jurisdictional grounds, the court will

not address the government’s contentions that Mr. Straughter failed to state a claim upon which

relief may be granted or that it is entitled to judgment upon the administrative record. See Def.’s

Mot. at 9, 11.

728 U.S.C. § 1631 provides, in relevant part:

Whenever a civil action is filed in a court as defined in section 610 of this title . . '16'.

and th[e] court finds that there is a want of jurisdiction, the court shall, if it is in

the interest of justice, transfer such action or appeal to any other such court in

which the action or appeal could have been brought at the time it was filed or

noticed, and the action or appeal shall proceed as if it had been filed in or noticed

for the court to which it is transferred on the date upon which it was actually filed

in or noticed for the court from which it is transferred.

28 U.S.C. § 16312.-

transferee court on the same subject).8

The second element, however, is not met in this instance because there is no alternative

federal court in which Mr. Straughter could have originally filed his claims as currently pled.

Generally, two distinct avenues exist for current and former service members to bring civil

actions against the United States in federal court: (1) the Tucker Act, 28 U.S.C. § 1491, or the

Little Tucker Act, 28 U.S.C. §1346(a)(2); and (2) the Administrative Procedure Act (APA), 5

U.S.C. §§ 701-706, and the federal questionjurisdictional statute, 28 U.S.C. § 1331. See, e.g.,

Tootle v. Sec’y ofNavy, 446 F.3d 167 (DC. Cir. 2006); Randall v. United States, 95 F.3d 339

(4th Cir. 1996); Kidwell v. Dep ’t of Army, Bd. for Correction of Military Records, 56 F.3d 279

(DC. Cir. 1995); Ward v. Brown, 22 F.3d 516 (2d Cir. 1994); Mitchell, 930 F.2d 893.9 Both the

APA and the Tucker Act waive the sovereign immunity of the federal government in certain

circumstances. See Randall, 95 F.3d at 345. The Tucker Act waives the government’s sovereign

immunity only with respect to claims deriving from a money-mandating source of law and grants

this court exclusive jurisdiction over claims exceeding $10,000. See Mitchell, 930 F.2d at 894

n.2. Under the Tucker Act, in a military pay case, this court is authorized to award injunctive

relief only when the injunction is “an incident of and collateral to” and award of monetary relief.

See 28 U.S.C. § l49l(a)(2). By contrast, the APA’s waiver of sovereign immunity is limited to

cases seeking relief “other than money damages.” 5 U.S.C. § 702. In addition, review under the

APA is available only for “final agency action for which there is no other adequate remedy in a

court,” 5 U.S.C. § 704 (emphasis added), which has been interpreted by some, but not all, courts

to preclude judicial review under the APA when this court may award, or might have awarded,

an adequate remedy under the Tucker Act. Compare Ward, 22 F.3d at 519 (“[R]egardless of the

amount in controversy, an action in a district court is proper under the federal question

jurisdiction statute, 28 U.S.C. § 1331, if a statute other than the Tucker Act [including the APA]

provides the necessary waiver of sovereign immunity”), and CH. Sanders Co. v. BHAP Hous.

Dev. Fund Co., 903 F.2d 114, 119 (2d Cir. 1990) (“[T]he Tucker Act provides merely one

limited waiver of sovereign immunity”), with Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d

1221, 1230 (5th Cir. 1976) (“[T]he availability of a remedy in the Court of [Federal] Claims

under the Tucker Act has been held to be an adequate remedy [under Section 704 of the APA]”);

Randall, 95 F.3d at 346; Mitchell, 930 F.2d at 897.

Accordingly, because Mr. Straughter in his complaint specifically requests damages in an

amount “exceeding $10,000,” Compl. at 1, “[his] money-based complaint could not have been

brought in the district court in the first instance,” Martinez, 333 F.3d at 1320. As a consequence,

8Notably, Mr. Straughter was specifically advised by the Correction Board that he could

seek review by this court. See AR 78 (Letter from LoGrande to Straughter (June 12, 2014))

(“[P]ursuant to 5 U.S.C. § 701, et. seq. and 28 U.S.C. § 1491, Congress authorizes applicants,

such as yourself, to pursue review of final [Board] decisions through the US Court of [Federal]

Claims or appropriate US. District Court.”)).

9The APA entitles a person claiming to have suffered a legal wrong because of agency

action to judicial review of that action, 5 U.S.C. § 702, provided that the claim has first been

brought before a relevant agency and the agency has issued a final decision or disposition, 5

U.S.C. § 704.

the court “lack[s] authority under [S]ection 1631 to transfer it to a district court at this juncture.”

Id.

This court cannot address whether Mr. Straughter may initiate a new action in the federal

district court in the Central District of California under the general question statute and the APA

if he amends his complaint by limiting it to request solely nonmonetary relief.10 At least some

courts adhere to a “strict pleading requirement,” implicating Tucker Act jurisdiction only where

monetary damages are explicitly requested in the complaint. See Kidwell, 56 F.3d at 284 (“[A]s

long as the sole remedy requested is declaratory or injunctive relief that is not ‘negligible in

comparison’ with the potential monetary recovery, . . . we respect the plaintiffs choice of

remedies and treat the complaint as something more than an artfully drafted effort to circumvent

the jurisdiction of the Court of Federal Claims.” ) (citations omitted); see also T ootle, 446 F.3d at

174-75 (DC. Cir. 2006) (noting a determination that plaintiff is “unfit for duty” and eligible for

retirement would be of significant non-monetary value). Should Mr. Straughter bring a claim

under the APA, his action may not be time-barred. Claims brought under the APA, while subject

to a six-year statute of limitations period set forth in 28 U.S.C. § 2401, accrue on the date of

“final agency action.” 5 U.S.C. § 704; see, e.g., Sierra Club v. Slater, 120 F.3d 623, 631 (6th

Cir. 1997). Here, it appears that Mr. Straughter received notice of the Board’s final decision in

2013. See AR 75 (“Absent judicial action, the Air Force considers your [Board] decision

final”); see also AR 78.11 Nonetheless, a statutory time-limitation on seeking review from a

correction board would have to be taken into account. See 10 U.S.C. §1553(a) (“A motion or

request for review [by a correction board] must be made within 15 years after the date of

discharge or dismissal.”).

10The Central District of California is the federal district that encompasses MR5

Straughter’s stated place of residence.

11After a suit for back pay has been dismissed in this court because the limitations

period has expired, the ability of a plaintiff to file an action in federal district court under the

APA seeking reinstatement and a correction of military records where back pay is not explicitly

requested may be an open question in the Court of Appeals for the Ninth Circuit. Compare

Ward, 22 F.3d at 519-20 (holding former nurse’s claims challenging discharge were proper

under the APA because the APA provided waiver of sovereign immunity separate from that

supplied by the Tucker Act); with Martinez, 333 F.3d at 1320 (noting that for a plaintiff

requesting both monetary and nonmonetary damages, “[t]he fact that the complaint was untimely

filed in the Court of Federal Claims does not mean that court could not offer a full and adequate

remedy [under 5 U.S.C. § 704]; it merely means that [plaintiff] did not file his complaint in time

to take advantage of that remedy”); Randall, 95 F.3d at 347-48 (holding that review of

serviceman’s case was proper under the APA because injunctive relief was the “essence” of his

complaint but noting “[t]his case is different from a case where the plaintiff brings an action . . .

after he has already been discharged” because “[i]n such a case, a successful plaintiff has a cause

of action for back pay”) (emphasis in original); and Mitchell, 930 F.2d 897 (holding service

member’s suit seeking active duty credit and back pay would receive adequate review under the

Tucker Act, triggering Section 704 of the APA to bar APA waiver of sovereign immunity).

8

CONCLUSION

For the reasons stated, the government’s motion to dismiss is GRANTED, and

Mr. Straughter’s complaint is dismissed pursuant to RCF C 12(b)(1) for lack of subject matter

jurisdiction. The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

:harlesT. Lettovl/

Judge