Somosot v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 13-710 V

(Filed April 7, 2015)1

************************

RAYMOND SOMOSOT and *

WANWILAI SOMOSOT, on behalf of *

R.D.S., a minor, * National Childhood Vaccine

* Injury Act of 1986, 42 U.S.C.

Petitioners, * §§ 300aa-1 to -34 (2012);

* Untimely Petition under 42

v. * U.S.C. § 300aa-16(a)(2);

* Review of Special Master’s

SECRETARY OF HEALTH AND * Denial of Request for

HUMAN SERVICES, * Attorneys’ Fees and Costs.

*

Respondent. *

************************

Lorraine J. Mansfield, Las Vegas, NV, for petitioners.

Lynn E. Ricciardella, United States Department of Justice, with whom were

Joyce R. Branda, Acting Assistant Attorney General, Rupa Bhattacharyya,

Director, Vincent J. Matanoski, Deputy Director, and Gabrielle M. Fielding,

Assistant Director, Washington, DC, for respondent.

________________________________

OPINION

________________________________

BUSH, Senior Judge.

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/ Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of Federal

Claims, this Opinion and Order was initially filed under seal on March 12, 2015. Pursuant to ¶ 4

of the ordering language, the parties were to propose redactions of the information contained

therein on or before March 26, 2015. No proposed redactions were submitted to the court.

Now pending before the court is petitioners’ motion for review of the special

master’s denial of their request for attorneys’ fees and costs under the National

Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (Act or

Vaccine Act). See Somosot ex rel. R.D.S. v. Sec’y of Health & Human Servs., No.

13-710, 2014 WL 6536059 (Fed. Cl. Spec. Mstr. Oct. 31, 2014) (Somosot III).2

The Secretary opposes the motion for review. For the reasons set forth below, the

court denies petitioners’ motion for review.

BACKGROUND

I. Procedural Overview

Petitioners filed their petition for compensation under the Vaccine Act on

September 23, 2013, alleging that their son R.D.S. developed cerebral palsy (CP)

as a result of the influenza vaccination he received on December 19, 2007. The

special master found that petitioners were not entitled to compensation under the

Vaccine Act because their petition was untimely. See Somosot ex rel. R.D.S. v.

Sec’y of Health & Human Servs., No. 13-710, 2014 WL 1926491 (Fed. Cl. Spec.

Mstr. Apr. 24, 2014) (Somosot I). This court then sustained the special master’s

decision denying entitlement to compensation under the Act. See Somosot ex rel.

R.D.S. v. Sec’y of Health & Human Servs., 118 Fed. Cl. 687 (2014) (Somosot II).

On September 19, 2014, petitioners filed an application for attorneys’ fees

and costs which the government opposed. Although respondent did not contest

that the petition was brought in good faith, the Secretary argued that their claim

was not supported by a reasonable basis. The special master agreed with

respondent that the petition in this case lacked a reasonable basis.

The special master noted that:

Under the Vaccine Act, a special master or a judge on the

Court of Federal Claims may award fees and costs for an

unsuccessful petition if “the petition was brought in good

faith and there was a reasonable basis for the claim for

which the petition was brought.”

/ Following the example of the parties, all page references to Somosot III are to the version

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of this opinion on the court’s website, not to the version found on Westlaw.

2

Somosot III, at 7 (citing 42 U.S.C. § 300aa-15(e)(1) and Sebelius v. Cloer, 133 S.

Ct. 1886, 1893 (2013) (Cloer III). In particular, the special master found that “[a]

review of the relevant case law and [R.D.S.’s] medical records should have alerted

petitioners and their counsel that this case was untimely.” Id. at 8. The special

master therefore concluded that “there was no reasonable basis to bring this

petition” and denied petitioners’ request for attorneys’ fees and costs. Id. at 9.

II. Factual Background

R.D.S. was born on March 15, 2007 and received an influenza vaccination

during his nine-month well-baby visit on December 19, 2007. “[T]he first

symptoms of R.D.S.’s CP occurred in 2008 or earlier.” Somosot I, 2014 WL

1926491, at *7 (emphasis added). A diagnosis of CP, however, was not

mentioned in R.D.S.’s medical records until May 2011. Somosot III, at 6. As the

special master noted in Somosot III, five years separated the first symptoms of

R.D.S.’s CP and the petition filed in this case. Id. at 8. The Vaccine Act requires

that a petition be filed within three years of the first symptom or manifestation of

onset of the alleged vaccine injury. See 42 U.S.C. § 300aa-16(a)(2) (stating that

“no petition may be filed for compensation under the Program for such injury after

the expiration of 36 months after the date of the occurrence of the first symptom or

manifestation of onset . . . of such injury”).

DISCUSSION

I. Standard of Review

A. Three Distinct Standards of Review

This court has jurisdiction to review the decision of a special master in a

Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court

of Federal Claims reviews the decision of the special master to determine if it is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.

Cir. 2008) (alteration in original) (quoting 42 U.S.C. § 300aa-12(e)(2)(B), and

citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir.

2005)). More specifically, this court uses three distinct standards of review in

Vaccine Act cases, depending upon which aspect of a special master’s judgment is

under scrutiny:

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These standards vary in application as well as degree of

deference. Each standard applies to a different aspect of

the judgment. Fact findings are reviewed . . . under the

arbitrary and capricious standard; legal questions under

the “not in accordance with law” standard; and

discretionary rulings under the abuse of discretion

standard.

Munn v. Sec’y of Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10 (Fed.

Cir. 1992).

B. The Abuse of Discretion Standard Applies to the Denial of a

Request for Attorneys’ Fees

To withhold an award of attorneys’ fees for an unsuccessful Vaccine Act

petition is within the discretion of the special master. See, e.g., Saxton ex rel.

Saxton v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 1517, 1520 (Fed. Cir.

1993) (stating that the Vaccine Act “clearly gives [the special master] discretion

over whether to make [an attorneys’ fees] award” in such cases). The denial of a

request for attorneys’ fees by a special master, therefore, is “generally reviewed for

abuse of discretion.” Scanlon v. Sec’y of Health & Human Servs., 116 Fed. Cl.

629, 633 (2014) (citations omitted); see, e.g., Chuisano v. United States, 116 Fed.

Cl. 276, 283-84 (2014) (“[A] special master’s decision whether to award or deny

attorneys’ fees and costs to unsuccessful petitioners is discretionary and, thus,

reviewed under an abuse of discretion standard.”) (citations omitted). In the

context of Vaccine Act cases, an abuse of discretion has not occurred when the

special master “considered the relevant evidence, drew plausible inferences, and

articulated a rational basis for [her] finding.” Masias v. Sec’y of Health & Human

Servs., 634 F.3d 1283, 1290 (Fed. Cir. 2011).

II. The Special Master Did Not Abuse Her Discretion in Denying

Petitioners’ Request for Attorneys’ Fees and Costs

A. The “Reasonable Basis” Requirement for an Award of Attorneys’

Fees and Costs to an Unsuccessful Petitioner under the Act

Under the Vaccine Act, the fact that a petition for compensation is ultimately

denied does not mean that the petitioner cannot be awarded attorneys’ fees and

costs. The governing language of the Act states that:

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If the judgment of the United States Court of Federal

Claims on such a petition does not award compensation,

the special master or court may award an amount of

compensation to cover petitioner’s reasonable attorneys’

fees and other costs incurred in any proceeding on such

petition if the special master or court determines that the

petition was brought in good faith and there was a

reasonable basis for the claim for which the petition was

brought.

42 U.S.C. § 300aa-15(e)(1). The two conditions for a fee award mentioned in this

statutory text are that the petition was brought in good faith and that the petition

had a reasonable basis. Id.

In this case, the special master found that the “good faith” requirement was

met by the Somosots. Somosot III, at 7. As for the requirement that a Vaccine Act

petition have a reasonable basis, the special master noted that this term is not

defined in the Act. Id. The special master also noted that even an untimely

petition may be found to have had a reasonable basis. Id. at 7-8.

B. The Totality of the Circumstances Test

The inquiry into whether a petition possessed a reasonable basis so as to

permit an award of attorneys’ fees, 42 U.S.C. § 300aa-15(e)(1), has been described

as a “totality of the circumstances” test. See Chuisano, 116 Fed. Cl. at 286

(“Numerous special masters, as well as this court, have held that reasonable basis

is an objective standard determined by the ‘totality of the circumstances.’”)

(citations omitted). Under this test, any jurisdictional barriers to the petition’s

success, among other factors, should be considered. Id. at 288. Further, the special

master may consider whether the preliminary investigation of the claim by the

petitioners’ attorney, before making the decision to file the petition, was reasonable

in light of the circumstances. Id.

C. Overview of Petitioners’ Arguments

Petitioners present a number of arguments in their motion for review

asserting that the special master’s denial of their request for attorneys’ fees and

costs was an abuse of discretion and contrary to law. First, they argue that their

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decision to file the petition in 2013 and not earlier was reasonable in light of the

complex facts in R.D.S.’s medical records. Pet’rs’ Mot. at 2. Second, petitioners

contend that the United States Supreme Court’s decision in Cloer III is analogous

to this case and compels an award of attorneys’ fees here. Id. at 5-6. Third,

petitioners rely upon another vaccine case, W.C. v. Sec’y of Health & Human

Servs., No. 07-456, 2011 WL 4537877 (Fed. Cl. Spec. Mstr. Feb. 22, 2011) (W.C.

v. HHS), aff’d in relevant part, 100 Fed. Cl. 440 (2011), aff’d, 704 F.3d 1352 (Fed.

Cir. 2013), to allege that their petition had a reasonable basis. Pet’rs’ Mot. at 7.

Finally, petitioners state that a denial of a request for attorneys’ fees and costs in

this case would constitute unequal treatment because less viable petitions have

been afforded attorneys’ fee awards under the Act. In this regard, petitioners argue

that the Vaccine Act requires that petitioners be treated equally. Id. (citing

Figueroa v. Sec’y of Health & Human Servs., 715 F.3d 1314, 1317-18 (Fed. Cir.

2013)). The court addresses each of these arguments in turn.

D. The Special Master’s Determination that the Petition Lacked a

Reasonable Basis Survives Review

Petitioners describe the claim in their petition as “admittedly tough, but yet

reasonable.” Pet’rs’ Mot. at 1. They also assert that this case was founded on

“complex facts,” and that this case was “firmly grounded in . . . [R.D.S.’s] medical

records.” Id. at 1, 6. Petitioners fail to explain, however, how the facts of this case

could justify filing a petition that was clearly untimely under precedent binding on

this court. This binding precedent, as the special master noted, holds that the

statute of limitations for Vaccine Act petitions runs from the date of the appearance

of symptoms of the alleged vaccine injury, not from the date that the alleged

vaccine injury is diagnosed. Somosot III, at 3, 8; see 42 U.S.C. § 300aa-16(a)(2)

(stating that “no petition may be filed for compensation under the Program for such

injury after the expiration of 36 months after the date of the occurrence of the first

symptom or manifestation of onset . . . of such injury”); Cloer v. Sec’y of Health &

Human Servs., 654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc) (Cloer I) (stating

that the Vaccine Act’s statute of limitations “begins to run on the calendar date of

the occurrence of the first medically recognized symptom or manifestation of onset

of the injury claimed by the petitioner”); Markovich v. Sec’y of Health and Human

Servs., 477 F.3d 1353, 1360 (Fed. Cir. 2007) (holding that the “‘first symptom or

manifestation of onset’” of a vaccine injury, for the purposes of 42 U.S.C. § 300aa-

16(a)(2), “is the first event objectively recognizable as a sign of a vaccine injury by

the medical profession at large”). In this instance petitioners failed to file their

petition within thirty-six months of the date of R.D.S.’s first symptoms of CP.

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Because the special master found that the Somosots brought their petition in

good faith, the fundamental question that remained to be resolved was whether

petitioners’ untimely Vaccine Act claim had a reasonable basis. She noted that it is

indeed possible for an untimely Vaccine Act claim to have a reasonable basis.

Somosot III, at 7-8. The special master provided two examples illustrating how an

untimely claim might have a reasonable basis: (1) when precedent governing the

running of the statute of limitations is unclear; and (2) when petitioners possess a

reasonable belief that the first symptom of the alleged vaccine injury occurred

within three years of filing their petition. Unfortunately for petitioners here,

precedent regarding the statute of limitations for Vaccine Act cases was firmly

established by the Federal Circuit in Cloer I, acting en banc in 2011, well in

advance of the Somosots’ decision to file their petition in September 2013. Thus,

no lack of clarity in precedent governing the statute of limitations for the filing of a

Vaccine Act petition can provide a reasonable basis for the untimely petition filed

in this case.

The second scenario described by the special master, where a petitioner has

a reasonable belief that the first symptom of an alleged vaccine injury occurred

within three years of the filing of the petition, is not addressed by substantive

argument in petitioners’ motion for review. According to the special master’s

opinion, petitioners argued before her “that they reasonably believed R.D.S’s

vaccine-related symptoms began within the limitations period based upon the

opinion of Dr. Wesley Robertson, R.D.S.’s pediatrician.” Somosot III, at 8.

Although it is true that in 2011 or 2013 Dr. Robertson articulated a hypothesis

about vaccine injury causation that linked R.D.S.’s CP to his influenza vaccination,

that commentary on causation is not relevant to the statute of limitations inquiry.

Id. Instead, petitioners and their counsel needed to review R.D.S.’s medical

records for the earliest symptoms of his CP. Id.

Petitioners have therefore failed to show that their untimely petition fits into

either of the special master’s illustrative examples of untimely petitions which

nonetheless have a reasonable basis. Precedent as to the running of the statute of

limitations was clear, and the first symptoms of CP in 2008 were clearly present in

R.D.S.’s medical records. Nor have petitioners identified any other reason why

their untimely petition should objectively be viewed as having had a reasonable

basis.

As the special master held,

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Here, the medical records clearly demonstrate that R.D.S.

exhibited symptoms of cerebral palsy in 2008, five years

before the petition was filed. Petitioners did not have a

reasonable basis to believe that R.D.S.’s first symptom of

cerebral palsy occurred after September 23, 2010, and

thus did not have a reasonable basis to file the petition.

Petitioner[s’] misunderstanding of the applicable legal

standard relating to section 16(a)(2) (when the statute of

limitations begins to run) does not make the filing of

their petition reasonable.

Somosot III, at 8. The petition did not have a reasonable basis because “[a] review

of the relevant case law and [R.D.S.’s] medical records should have alerted

petitioners and their counsel that this case was untimely.” Id. As summarized in

the conclusion section of the special master’s opinion, “there was no reasonable

basis to bring this petition, based on the clearly established law that the statute of

limitations begins to run on the date the first symptom or manifestation of onset

occurs.” Id. at 9 (citing 42 U.S.C. § 300aa-16(a)(2)).

The special master properly applied the “totality of the circumstances” test

described in Chuisano. See 116 Fed. Cl. at 286. This untimely petition was barred

by the statute of limitations, which is one factor in determining whether a petition

has a reasonable basis. Id. at 288. Further, there was inadequate investigation into

the onset of symptoms of R.D.S.’s CP, which occurred no later than 2008. Id.

Because the special master properly applied the “totality of the circumstances” test,

id. at 286, and “considered the relevant evidence, drew plausible inferences, and

articulated a rational basis for [her] finding,” Masias, 634 F.3d at 1290, her finding

that the petition lacked a reasonable basis was neither an abuse of discretion nor

contrary to law.3

E. Cloer III

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/ Petitioners have not explained how the facts in R.D.S.’s medical records could be

considered to be more complex than those in the medical records examined in Cloer I or

Markovich or other Vaccine Act cases where entitlement to compensation was denied due to the

running of the statute of limitations. The court sees no abuse of discretion in the special master’s

finding that R.D.S.’s medical records clearly demonstrated that he exhibited symptoms of CP in

2008.

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Before examining petitioners’ reliance on Cloer III, it is helpful to give some

background of that Supreme Court decision. The question of the availability of

attorneys’ fees and costs for untimely Vaccine Act petitions was thoroughly

addressed by the United States Court of Appeals for the Federal Circuit in Cloer v.

Secretary of Health & Human Services, 675 F.3d 1358 (Fed. Cir. 2012) (en banc)

(Cloer II). The conclusion of that decision succinctly states the holding of the

Federal Circuit:

A petitioner who asserts an unsuccessful but

nonfrivolous limitations claim should be eligible for a

determination of whether reasonable attorneys’ fees and

costs incurred in proceedings related to his or her petition

should be awarded. Therefore, we remand for a

determination as to whether Dr. Cloer’s [untimely]

petition was brought in good faith and whether the claim

for which her petition was brought had a reasonable

basis.

Cloer II, 675 F.3d at 1364 (emphases added).

The decision of the Supreme Court affirming Cloer II confirms that

petitioners filing untimely Vaccine Act petitions may receive an attorneys’ fee

award if their petitions were brought in good faith and had a reasonable basis:

The text of the [Vaccine Act] is clear: like any other

unsuccessful petition, an untimely petition brought in

good faith and with a reasonable basis that is filed with

– meaning delivered to and received by – the clerk of the

Court of Federal Claims is eligible for an award of

attorney’s fees.

Cloer III, 133 S. Ct. at 1895 (emphases added). The concluding sentence of Cloer

III is unambiguous:

We hold that [a Vaccine Act] petition found to be

untimely may qualify for an award of attorney’s fees if it

is filed in good faith and there is a reasonable basis for

its claim.

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Id. at 1896-97 (emphases added).

The fundamental problem with petitioners’ reliance on Cloer III is that the

Supreme Court did not comment on or address the question of how a special

master should determine whether an untimely petition has a “reasonable basis.”

The only question before the Supreme Court was whether the Vaccine Act

included untimely petitions among the unsuccessful petitions that could be eligible

for an attorneys’ fee award. Cloer III, 133 S. Ct. at 1890 (“The question before us

is whether an untimely petition can garner an award of attorney’s fees.”); see also

Resp’t’s Resp. at 12 n.4 (noting that “the issue of the reasonableness of the

underlying claim was not before the Supreme Court [in Cloer III], and thus the

Court did not address it”). Thus, there is no support in Cloer III for the following

argument presented in petitioner’s motion for review:

The Cloer [III] Court found that attorney’s fees and costs

were awardable – the Cloer [III] Court considered a

petition later determined to be filed after the statute of

limitations had run, was reasonable. This Court should

follow the ruling of Cloer [III], and determine the

petitioners’ claims in filing the petition [in this case]

were reasonable.

Pet’rs’ Mot. at 5. Petitioners appear to confuse an untimely Vaccine Act petition’s

eligibility for an attorneys’ fee award, which was firmly established by Cloer III,

with the different and separate requirement that an untimely Vaccine Act petition

also have a reasonable basis. See 42 U.S.C. § 300aa-15(e)(1).

Petitioners also state, without explanation, that:

The fact situation in Cloer [III] is markedly similar to the

case here. In both, the initial symptoms of a

vaccine-related injury and of unrelated malady, add up to

a reasonable basis to bring the claim, and, as in Cloer

[III], attorney’s fees and costs are awardable to meet the

mandate of the Vaccine Act.

Pet’rs’ Mot. at 6. There is, however, no discussion in Cloer III which addresses

the question of whether the untimely petition in that litigation had a reasonable

basis. Nor does Cloer III contain any discussion of an “unrelated malady.” The

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court is unable to interpret Cloer III as “markedly similar” to the facts of this case

or at all relevant to a determination of whether the untimely petition filed in this

case had a “reasonable basis.” The court finds petitioners’ reliance on Cloer III to

be unavailing.

F. W.C. v. HHS

Petitioners also attempt to find support for their request for attorneys’ fees in

W.C. v. HHS, another Vaccine Act case. Pet’rs’ Mot. at 7. The court observes that

in their motion for review only two sentences are devoted to this case, and no page

references to particular passages in the W.C. v. HHS opinion are provided. Id. As

respondent notes, W.C. v. HHS is a special master’s decision denying entitlement,

not a decision on a request for attorneys’ fees. Resp’t’s Resp. at 12. Any

commentary in that opinion discussing symptoms and an alleged vaccine injury is

necessarily focused on the causation or significant aggravation of a medical

condition, not on the question of whether the timely Vaccine Act petition filed in

that case had a reasonable basis at the outset.

Thus, the court cannot agree with the argument presented in petitioners’

motion for review which references W.C. v. HHS and cryptically states:

The Office of Special Masters has considered another

case similar to the one here discussing a petitioner who

had the disease multiple sclerosis. The court noted that it

was a subclinical disease and that the petitioner had a

reasonable belief that the vaccine caused the symptoms.

Pet’rs’ Mot. at 7 (citing generally to W.C. v. HHS, 2011 WL 4537877). Because

W.C. v. HHS addresses the issue of entitlement to compensation under the Act, not

the question of whether a Vaccine Act petition possessed a reasonable basis for its

filing in the first instance, any citation to W.C. v. HHS is inapposite to the inquiry

required here.

G. Equal Treatment

Finally, petitioners contrast the denial of attorneys’ fees and costs in this

case with the “inconsistent” fee awards in “each of the [Omnibus Autism

Proceeding] test cases.” Pet’rs’ Mot. at 7 (citing Autism General Order #1, 2002

WL 31696785 (Fed. Cl. Spec. Mstr. July 3, 2002)). The court notes, first, that the

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Omnibus Autism Proceeding did not expand or otherwise alter the three-year

window for filing a petition under the Vaccine Act. See Autism General Order #1,

2002 WL 31696785, at *8. The only alterations in petition processing in the

Omnibus Autism Proceeding that might be relevant to this case consisted of the

option of using a “short-form petition” and the option to participate in a proceeding

which examined vaccine injury causation for a group of cases. Id. at *7-8.

None of the advantages of the Omnibus Autism Proceeding, which were

adopted to confront an overwhelming wave of petition filings with similar

causation disputes, would have affected the timeliness of the petition filed in this

case. Here, petitioners first contacted counsel in December 2012. Pet’rs’ Mot. for

Fees, at 2. By that time, any Vaccine Act petition for R.D.S.’s alleged vaccine

injury of CP was already untimely, because the first symptoms of R.D.S.’s CP

occurred in 2008 at the latest. In other words, even if a short-form petition option

and a multi-case protocol had been made available to the Somosots and their

counsel, such as were offered in the Omnibus Autism Proceeding, any resulting

savings of time and effort in preparing a petition would not have assisted them in

filing a timely petition. Thus, even if the Somosots had been treated exactly like

the autism petitioners participating in the Omnibus Autism Proceeding, their

petition would still have been untimely and would still have lacked a reasonable

basis.

Petitioners also allege that “[m]any of the autism cases were less viable than

the instant case – many of them were untimely with poorly documented medical

records.” Pet’rs’ Mot. at 7. The Somosots also insist that “if the autism cases had

a reasonable basis, it follows that petitioners in the instant case had a reasonable

basis.” Id. It is impossible to conclude, based on these sweeping, unsubstantiated

remarks, that petitioners in this case have received unequal treatment so as to

violate the principle of equal treatment embodied in the Vaccine Act. It is certainly

true that the Federal Circuit has held that “the Vaccine Act enshrines a principle of

equal treatment for similarly situated vaccine-injured persons.” Figueroa, 715

F.3d at 1317-18 (citing Cloer I, 654 F.3d at 1340). Here, however, the Somosots

have not established that they were similarly situated to the autism petitioners

whose related, pending claims numbered in the hundreds, or that they received

unequal treatment in the denial of their request for attorneys’ fees and costs. The

court sees no evidence of unequal treatment of these petitioners in the special

master’s decision in Somosot III.

CONCLUSION

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For the foregoing reasons, the court finds no error in the special master’s

denial of petitioners’ request for attorneys’ fees and costs. Accordingly, it is

hereby ORDERED that

(1) Petitioners’ Motion for Review, filed November 23, 2014, is

DENIED;

(2) The special master’s Decision Denying Attorneys’ Fees and Costs,

filed October 31, 2014, is SUSTAINED;

(3) The Clerk’s Office is directed to ENTER final judgment in

accordance with the special master’s decision of October 31, 2014;

and

(4) The parties shall separately FILE any proposed redactions to this

opinion, with the text to be redacted clearly marked out or otherwise

indicated in brackets, on or before March 26, 2015.

/s/Lynn J. Bush

LYNN J. BUSH

Senior Judge

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