Petition for Writ of Certiorari — Minnis v. United States Department of Agriculture

Office - Supreme Court. US.

84-663 FILED

OCT 15 teg4

ALEXAN 3 ;

No. DER lL. STEVag |

CLERK

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

MARK G. MINNIS,

PETITIONER

V.

THE UNITED STATES DEPARTMENT OF AGRICULTURE,

ET AL

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Thomas E. Cooney

Counsel of Record

Jeffrey B. Wihtol

Cooney, Crew & Wihtol

205 Riviera Plaza

1618 S.W. First Avenue

Portland, OR 97201

(503) 221-1529

Of Attorneys for

Petitiorer

October 15, 1984

nen an

QUESTION PRESENTED

Whether the Government is collater-

ally estopped, from litigating whether

disclosure of the the names and addresses

of 1983 recipients of Forest Service

permits to float the Rogue River in the

State of Oregon would constitute a clearly

unwarranted invasion of personal privacy,

by the 1981 judgment of The United States

District Court for the District of Oregon

whieh held, as one of two alternative and

independent grounds for its judgment, that

disclosure of the 1981 recipients was not

"clearly unwarranted" under the Freedom of

Information Act, 5 U.S.C. § 552(b)(6).

PARTIES TO THE PROCEEDING

Other parties, in addition to those

named in the caption are R. Max Peterson,

Chief of the United States Forest Service,

R.E. Worthington, Regional Forester of

ii

Region 6, United States Forest Service, and

William E. Butler, District Ranger, Galice

Ranger District, United States Forest

Service.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ......~ i

PARTIES TO THE PROCCEDINGS ... i

Pim OMIM. wt CO

UESUICTICON 2 wt

STATUTE INVOLVED. ........~ 2

STATEMENT. «© «© «© © © 8s © © © 8 3

REASONS FOR GRANTING

gg a a a ee |

ole ht le | i a a Y |

APPENDIX . . » + 0 © © © «© «© o 6 oApp 1

TABLE OF AUTHORITIES

CASES PAGES

Commissioner v. Sunnen,

“So. O8 est «+ + sw Oy OS

S3. i

Department of the Air

Force v. Rose, 425 U.S.

DES / << «5 « 5 6 « « « « 10

Department of State v.

Washington Post Co.,

456 ue. io. )

Dozier v. Ford Motor Co.,

702 F.2d 1189 (1983). . . . . . 17, 18

Halpern v. Schwartz,

426 F.2d 102 (2d Cir. 1970) . . 18, 14, 15

16, 17, 18

iv

Huntley v. United States,

4 Ct. Cl. 65 (1983)

Union Carbide Corp. v.

C.1.R., 671 F.2d 67

(2nd Cir. 1982)

Williams v. Ward, 556 F.2d

1143 (2nd Cir. 1977).

Winters v. Levine, 574 F.2d

46 (2nd Cir. 1978).

STATUTES

Freedom of Information Act,

5 U.S.C. § 552(b)(6).

268 U.8.C. § 1984€2). .. .

MISCELLANEOUS

Restatement (Second)

of Judgments.

Tentative Draft No. 4

of the Restatement

(Second) of Judgments .

J. Lueas, The Direct and

Collateral Estoppel Effects

of Alternative Holdings,

50 U. Chi. L. REV.

701 (1983).

18

19,

22

16

16,

15

19

17

15

19

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

MARK G. MINNIS,

PETITIONER

V.

UNITED STATES DEPARTMENT

OF AGRICULTURE, ET AL

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Mark G. Minnis petitions for a Writ

of Certiorari to review the judgment of The

United States Court of Appeals for the Ninth

Cireuit in this case.

=2@

OPINIONS BELOW

The opinion of the court of appeals

(App. ___, infra) is reported at 737 F.2d

784. The 1983 Order of the District Court

in this lawsuit (App. ___, infra) is not

reported. The 1981 Order of the District

Court in the prior lawsuit (App.

infra) is not reported.

JURISDICTION

The judgment of the court of

appeals was entered May 22, 1984 (App. ,

infra) and a petition for rehearing and sug-

gestion for rehearing en banc was denied on

July 18, 1984 (App. , infra). The

jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTE INVOLVED

Subsection (b)(6) of the Freedom of

Information Act, 5 U.S.C. § 552(b)(6),

provides:

=3<

(b) This section does not apply to

matters that are--

* * * * *

(6) personnel and medical files and

similar files the disclosure

of which would constitute a

clearly unwarranted invasion

of personal privacy; * * *

STATEMENT

This Freedom of Information Act

("FOIA") suit arose out of a request by

petitioner Mark G. Minnis for the names and

addresses of the applicants for permits to

float the Rogue River during 1983. The

Forest Service denied the FOIA request on

the basis of Exemption 6 of the Act, which

protects from disclosure "personnel and

medical files and similar files the disclo-

sure of which would constitute a clearly

unwarranted invasion of personal privacy."

59 U.S.C. § 552(b)(6).

The petitioner filed a motion for

summary judgment contending, in part, that

the Government was collaterally estopped

ago

from relitigating its duty to disclose the

names and addresses of the permit recipi-

ents. This issue was decided in 1981 by the

United States District Court in the

District of Oregon.

In 1980 Minnis made an FOIA re-

quest for the names and addresses of the

1980 permit recipients. Each year the

Forest Service conducts a “secret lottery"

to award prized permits to lucky appli-

cants. Without a permit it is unlawful to

float the Rogue River from Memorial Day

through Labor Day. The Forest Service

denied his 1980 request on the same ground,

Exemption 6. The parties fully briefed and

argued both prongs of Exemption 6: 1)

whether the names and addresses of the 1980

permit recipients were "similar" to medical

or personnel files, and 2) would disclosure

constitute a clearly unwarranted invasion

of the personal privacy of the permit

recipients?” The district court granted

Minnis' motion for summary judgment,

holding in favor of Minnis on both prongs,

and entered judgment in 1981 requiring the

Government to disclose the names_ and

addresses of the 1980 permittees. The

Government appealed from the 1981 judgment

but unilaterally dismissed its appeal

before the Ninth Circuit could rule on the

merits. The Forest Service disclosed the

names and addresses of the permit recipi-

ents for 1981 and 1982.

Because of this Court's decision in

Department of State vy. Washington Post Co.,

456 U.S. 595 (1982), Petitioner no longer

contended in 1983 that the names. and

addresses were not "similar files." “he

1983 lawsuit revolved around the issues of

collateral estoppel and whether disclosure

would constiute a clearly unwarranted inva-

Sion of personal privacy.

The Government argued in the dis-

trict court that the doctrine of collateral

~£-

estoppel did not apply because the 1981

judgment applied only to recipients of per-

mits and not to applicants as pliaintiff

requested in 1983. The district court held

that the facts and issues presented in 1983

were not the same as in 1980 since the 1980

request concerned permit recipients while

the 1983 request concerned permit appli-

cants. While the district court held col-

lateral estoppel was not applicable, it

held that disclosure of the names and

addresses would not constitute a clearly

unwarranted invasion of personal privacy

and ordered disclosure of the names and

addresses of the 1983 applicants.

The Government appealed the 1983

judgment. Petitioner again asserted

collateral estoppel as support for that

portion of the district court's judgment

holding disclosure of the names_~ and

addresses of the 1983 permittees would not

constitute a clearly unwarranted invasion

= oo

of personal privacy. The Ninth Circuit

reversed the district court, finding that

disclosure of the names and addresses of the

1983 applicants would constitute a clearly

unwarranted invasion of personal privacy.

The Ninth Circuit rejected application of

eollateral estoppel based upon its miscon-

ception of the district court's ruling. The

Ninth Circuit mistakenly believed that the

district court had never addressed whether

disclosure of ‘he 1980 permittees would

constitute a ciearly unwarranted invasion

of personal privacy.

Petititoner filed a Petition for

Rehearing and Suggestion for Rehearing En

Bane which was rejected on July 18, 1984.

The order rejecting the Petition for

Rehearing amended the May 22, 1984 opinion

of the Ninth Circuit by deleting the state-

ment that the district court had not consid-

ered whether disclosure of the 1980 permit-

tees would constitute a clearly unwarranted

alin

invasion of personal privacy. However,

rather than reconsidering its rejection of

collateral estoppel, the Ninth Circuit

added the following:

Minnis also suggests that the

Forest Service is collaterally

estopped from relitigating the

‘clearly unwarranted' issue. The

district court in the earlier

action did note its view that dis-

closure of the list of all permit

recipients would not be clearly

unwarranted. However, the district

court also recognized that it was

unnecessary for it to address that

issue. Because the district

court's expression of its view

regarding the issue was dictum, the

Forest Service is not collaterally

estopped from relitigating the

‘clearly unwarranted' question.

Moreover, the earlier question per-

tained to permit recipients while

the issue before us relates to per-

mit applicants. For that reason

also, collateral estoppel is inapp-

licable.

The Ninth Circuit did not ask for,

and the parties did not brief the issue of

whether collateral estoppel will apply to a

judgment resting upon alternative grounds,

either of which would be sufficient to inde-

pendently support the judgment.

=Sa

The parties agree that only permit

applicants may receive permits. Peti-

tioner's 1983 FOIA request was not phrased

as an "all the applicants or nothing"

request. Petitioner requested:

the mames and addresses of the

private permit trip applicants for

the 1983 regulated Rogue River

season. ..

The information is not

exempted from required disclosure

under present interpretations of

the Act, as you are aware from the

decision in the matter of Mark G.

Minnis v. United States Department

of Agriculture, R. Max Peterson and

R.E. Worthington, Civil No. 80-

1138, U.S. District Court for the

District of Oregon. . .

If any portion of this request

is deemed denied, I request a

detailed statement for the reasons

for the withholding.

If you withhold any portion of

the requested information, you are

requested to disclose and provide

the balance of .the requested

information.

The Act also expressly contemplates segre-

gation and disclosure of nonexempt portions

of a request:

“i f-

Any reasonably segregable por-

tion of a record shall be provided

to amy person’ requesting such

record after deletion of the

portions which are exempt under

this subsection.

5 U.S.C. § 552(b). See also, Department of

the Air Force v. Rose, 425 U.S. 325 (1976).

The Ninth Circuit cited no author-

ity for its narrow interpretation of Peti-

tioner's request to be for 1983 permit

applicants only, to the exclusion of 1983

permit recipients. The Government cited no

authority in support of this unique "all or

nothing" approach adopted by the Ninth

Circuit.

The Government has never contended

that the district court's holding that dis-

closure of the 1980 permittees would not

constitute a clearly unwarranted invasion

of privacy, was unnecessary to the 1981

judgment. The Government has not contended

that following the 1981 judgment there was 4

change in the applicable law with respect to

the determination of whether a clearly

«tle

unwarranted invasion of personal privacy

would result from disclosure. The Govern-

ment has not contended that new evidence

exists, which was unavailable to’. the

Government at the time of the 1980 lawsuit,

and which would have been determinative of

the outcome of the 1980 lawsuit if the

district court had been presented with the

evidence,

REASONS FOR GRANTING THE PETITION

This case presents an_ important

question concerning the application of

collateral estoppel to judgments resting on

alternative grounds, each of which is inde-

pendently sufficient to sustain the judg-

ment. In its holding in this ease, the

Ninth Circuit, without the benefit of

briefing by the parties, ruled in harmony

with a minority view that collateral estop-

pel does not apply to judgments based on

independent and alternative grounds, even

«} 2

if all grounds for the judgment are actually

litigated. Relatively recently a conflict

amongst the circuits and within the Second

Circuit has developed as to the application

of collateral estoppel to such a situation.

The issue hinges on whether each of the

alternative bases for a judgment is actu-

ally necessary to the judgment if an inde-

pendent basis for the judgment also exists.

The implications of the application

of collateral estoppel to such judgments

affects the certainty, and finality, and

redundency of litigation, and the burden on

trial and appellate courts.

Alternative grounds for judgments

are not unusual. Trial courts often reach

decisions on issues which would uphold the

basis for the judgment even if another

aspect of the court's findings were over-

turned on appeal. The district court did so

here in 1981. This promotes judicial econ-

omy by obviating retrial even if the trial

=] 3=

eourt is in error on one ground for the

judgment.

It is impractical, uneconomical,

and unfair that a litigant who prevails on

but one theory and obtains a judgment on

that theory can assert collateral estoppel

to preclude relitigation of the decided

issue by the same parties at a later time,

while the litigant who asserts two inde-

pendent theories, each of which are adopted

and each of which would support a judgment,

cannot assert collateral estoppel as _ to

either issue. The wisdom of such a rule of

law, while adopted by the Restatement

(Second) of Judgments, has been heavily

criticized.

The implications of this rule of

law are widespread, and deserve resolution

by this Court.

Until the decision in Halpern v.

Schwartz, 426 F.2d 102 (2d Cir. 1970), it

had been the well-settled rule that

=Léo

collateral estoppel did apply to judgments

resting on independently sufficient deter-

minations. In Halpern the Second Circuit

reconsidered this long-settled rule and

carved out an exception to the rule in

bankruptey cases based upon facts similar

to those in Halpern. While the facts in

Halpern are not at all analogous to those of

the instant case, the reasoning of the

Second Circuit is important. The Court

advanced two reasons for not’ applying

collateral estoppel under the circumstances

of the Halpern case: (1) If the court were

sure as to one of the alternative grounds

and this ground were alone sufficient to

support the judgment, other grounds for the

judgment may not receive as_ rigorous

consideration, (2) vigorous review of an

asserted error as to one ground for the

judgment would be less likely to occur since

even if there were error as to one basis for

the judgment, the judgment would be

=} 5-

affirmed as to the other grounds and the

motivation for appeal would be diminished.

The instant case demonstrates the

folly of such a general rule. Here, the

district court carefully considered both

grounds for its 1981 judgment after vigor-

ous briefing and argument by both sides on

both grounds. And here, a timely appeal of

the 1981 judgment may have obviated the need

for this second lawsuit and its consequent

burden on the parties' and the judiciary's

resources.

In 1977, when Tentative Draft No. 4

of the Restatement (Second) of Judgments

was published, the Halpern decision was the

most recent judicial examination of the

effect of judgments resting on indepem-

ently sufficient grounds. Comment (e) to

Section 20 of the Restatement (Second)

applies the Halpern reasoning and abandons

the former rule that collateral estoppel

applied to all of the independent grounds

-16=

for a judgment. The Halpern ruling has been

limited and criticized by numerous courts,

including the Second Circuit itself.

The Second Circuit in Williams v.

Ward, 556 F.2d 1143 (2nd Cir. 1977) noted

that the Halpern court limited its decision

to "the facts before us" 426 F.2d 105. The

Williams court distinguished the Halpern

decision on the basis that in Halpern one of

the bases for the judgment was on an issue

not essential and which may not have been

afforded careful deliberation, whereas in

the Williams case both bases for the judg-

ment were litigated at the same time and had

apparently been afforded the careful delib-

eration and analysis normally associated

with a judgment. The Williams court did not

vary from the traditional rule that res

judicata applied to all of the bases for the

judgment.

A year later, in Winters v. Levine,

574 F.2d 46, (2nd Cir. 1978), the Second

aiFe

Circuit Stated that Halpern was not

intended to have "broad impact outside the

specific context, bankruptcy proceedings,

in which the issue was presented there. . ."

Winters at 574 F.2d 67. The Winters court

abided by the traditional rule that collat-

eral estoppel will apply to alternative

grounds for a judgment and refused to apply

the rule applied in Halpern and by the Ninth

Circuit in this case. The Winters court

confined the Halpern rule to "narrow

circumstances" and stated the traditional

rule "has continuing viability in ecireum-

stances divergent from those in Halpern."

Winters at 67. Significantly, Judge

Waterman was a member of both the Halpern

and the Winters panels.

The District of Columbia Circuit

recognized the split of authority over the

res judicata and collateral estoppel effect

of alternative and independent bases for a

judgment in Dozier v. Ford Motor Co., 702

aie

F.2d 1189 (1983). It eharacterized the

problem as follows:

A rule declining to accord res

judicata effect to an alternate

ground must of course apply to both

grounds, which would mean that a

case which is doubly inadequate can

be refiled whereas a case inade-

quate in only one respect cannot.

On the other hand, a rule which give

res judicata effect to both grounds

leaves the losing party who con-

cedes the adequacy of one no appel-

late remedy for the patent invalid-

ity of the other except a frivolous

appeal.

702 F.2d at 1194.

The facts in Dozier, however, did not

require a resolution of the problem by the

Distriet of Columbia Circuit.

In Huntley v. United States, 4 Ct.

Cl. 65 (1983), the split of authority was

again recognized. The Court of Claims noted

the limitation of Halpern by the Second

Circuit, and the disapproval it has

received, and itself declined to follow the

Halpern rule.

Legal scholars have also condemned

the rule pronounced in Halpern, and adopted

-19-

by the Restatement (Second), as_ ineffi-

cient, often unfair, and promoting uncert-

ainty in litigation where finality is

essential. J. Lueas, The Direct’ and

Collateral Estoppel Effects of Alternative

Holdings, 50 U. Chi. L. REV. 701 (1983).

The fact that 1980 mnaemes_ and

addresses may not be the same as those in

1983 is not a bar to the application of

collateral estoppel since the same legal

and factual issues are present.

Commissioner v. Sunnen, 333 U.S. 591

(1947); Union Carbide Corp. v. C.I.R., 671

F.2d 67 (2nd Cir. 1982).

In Sunnen, this Court considered

the application of collateral estoppel to

relitigation of the same income tax issues

in succeeding tax years. This Court held

that even though a new tax year was

involved, and new income was_ involved,

collateral estoppel may still be appli-

cable, even though res judicata was not:

»20«

These same concepts are appli-

eable in the federal income tax

field. Income taxes are levied on

an annual basis. Each year is the

origin of a new liability and of a

separate cause of action. Thus, if

a claim of liability or_ non-

liability relating to a particular

tax year is litigated, a judgment

on the merits is res judicata, as to

any subsequent proceeding involving

the same claim and the same tax

year. But if the later proceeding

is e@oneerned with a_ similar or

unlike claim relating to a diff-

erent tax year, the prior judgment

acts as a collateral estoppel only

as to those matters in the second

proceeding which were actually

presented and determined in_ the

first suit. Collateral estoppel

operates in other words to relieve

the Government and the taxpayer of

"redundant litigation of the ident-

ical question of the statute's

application to the taxpayer's

status. (Citations omitted)

333 U.S. at 598-599.

Thus, the mere fact that a different tax

year was involved and different dollars

were received by the taxpayer as income,

collateral estoppel applied if the control-

ling facets and applicable laws remained

unchanged:

so

And so where two cases involve

income taxes in different taxable

years, collateral estoppel must be

used with its limitations carefully

in mind so as to avoid injustice.

It must be confined io situations

where the matter raised in the

second suit is identical in all

respects with that decided in the

first proceeding and where the

controlling facts and applicable

legal rules remain unchanged.

Id., at 599-600

In Union Carbide, supra, the IRS

contested the taxpayer's consolidated

foreign tax credit for the 1971 tax year.

The same issue had been litigated between

the two parties regarding the taxpayer's

1967 tax liability. The Court held collat-

eral estoppel prevented relitigation of the

issue:

We decline to reverse and we

affirm the application <* ecollat-

eral estoppel to the facts of this

case on the reasoning of Judge

Tannenwald's opinion. We agree

with the Tax Court that recent

decisions, particularly Montana v.

United States, 440 US 147, 99 S.Ct.

970, 59 L.Ed.2d 210 (1979), indi-

cate that it is appropriate to

invoke collateral estoppel here to

bar the Commissioner from reliti-

gating with the same taxpayer the

~ >

precise issue on which the

Commissioner has already lost for a

prior year.

Union Carbide, supra, at 68

The same reasoning and result

applies to the instant case. The nature of

the requested information remains unchanged

from the 1980 litigation. The fact that the

names and addresses may have changed is

irrelevant to the application of collateral

estoppel, just as the fact that the tax-

payers received new income in different tax

years was irrelevant in Sunnen and Union

Carbide. Insofar as the names and addresses

of the successful permit applicants is

concerned, there have been no factual

changes and no changes in the applicable law

which would affect the outcome of the case.

Defendants were obligated to segregate and

disclose the names and addresses of the 1983

permittees. 5 U.S.C. § 552(b).

The Ninth Circuit's ruling that

collateral estoppel cannot apply to any of

=23-

two or more independent grounds for a

judgment was made without briefing by the

parties and without significant discussion

of the issue. The ruling will add weight to

the Restatement (Second) position. The

effect of a widening application of such a

rule will be to create a dramatic change in

the heretofore settled law of collateral

estoppel and res judicata, resulting in

uncertainty in litigation due to a lack of

finality, an excessive burden upon. the

courts from repetitious litigation, and

outright unfairness. It will promote situ-

ations, such as the instant case, where an

unsuccessful litigant will be given

unlimited bites at the apple. It will

promote justice for the rich at the expense

of financially less able who are unable to

repeatedly litigate an issue over and over

again.

o2£0

CONCLUS ION

The judgment of the Ninth Circuit

should be reversed and the case remanded for

entry of judgment in favor of the Petitioner

diieeting disclosure of the mnames_= and

addresses of the 1983 permittees.

Dated: October 15, 1984

Respectfully submitted,

Thomas E. Cooney

Counsel of Record

Jeffrey B. Wihtol

Of Attorneys for Petitioner

App. l

Appendix

Order Denying Petition

For Rehearing and Rejecting

the Suggestion For Rehearing

En Banc, Filed

July 18, 1984

Opinion of The Ninth Circuit

Court of Appeals, Filed

May 22, 1984 —

Opinion and Order of the

United States District

Court, June 6, 1983

Judgment Order of the United

States District Court For

The District of Oregon,

Filed August 15, 1983

Judgment Order of The United

States District Court For

The District of Oregon.

App.

. App.

. App.

. App.

App.

16

30

34

App. 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK G. MINNIS,

No. 83-4089/4209

Plaintiff-Appellee-

Cross-Appellant, DC # 83-469-FR

(District of

Vv. Oregon)

ORDER

UNITED STATES DEPART -

MENT OF AGRICULTURE,

et al.

Defendants-

Appellants-Cross

Appellees.

ee ee ee

Before: SCHROEDER, FARRIS, and REINHARDT,

Circuit Judges.

The panel as constituted above has

voted to deny the petition for rehearing and

to reject the suggestion for rehearing en

banc.

The full court has been advised of

the suggestion for rehearing en banc, and no

judge of the court has requested a vote on

the suggestion for rehearing en banc. Fed.

R. App. P. 35(b).

App. 3

The petition for rehearing is

denied and the suggestion for rehearing en

bane is rejected. The opinion filed on May

22, 1984 shall be amended by deleting the

third sentence from footnote 1: "The dis-

trict court never addressed whether disclo-

Sure would be ‘clearly unwarranted.'" and

adding to the end of footnote 1 the follow-

ing paragraph:

Minnis also suggests that the

Forest Service is collaterally

estopped from relitigating the

"clearly unwarranted" issue. The

district court in the earlier

action did note its view that dis-

closure of the list of all permit

recipients would not be clearly

unwarranted. However, the district

court also recognized that it was

unnecessary for it to address that

issue. Because the district

court's expression of its view re-

garding the issue was dictum, the

Forest Service is not collaterally

estopped from relitigating the

"clearly unwarranted" question.

Moreover, the earlier question per-

tained to permit recipients while

the issue before us relates to per-

mit applicants. For that reason

also, collateral estoppel is inap-

plicable.

App. 4

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK G. MINNIS,

No. 83-4089-4209

Plaintiff-Appellee,

DC # 83-469-FR

v.

OP INION

UNITED STATES DEPART-

MENT OF AGRICULTURE,

et al.

Defendants-

Appellants.

Appeal from the United States District Court

for the District of Oregon

Helen J. Frye, District Judge, Presiding

Argued and submitted March 5, 1984

Before: SCHROEDER, FARRIS, and REINHARDT,

Circuit Judges.

SCHROEDER, Circuit Judge.

Mark G. Minnis owns a conmercial

lodge on the bank of the Rogue River in

Oregon. He filed this action under the

Freedom of Information Act, 5 U.S.C. § 552

(1982)(FOIA), to ~wompel the Forest Service

to disclose the names and addresses of all

persons who applied for permits to travel on

—_

Avp. 5

the Rogue River during the 1983 regulated

season. The Rogue River is a designated

wild and scenic river under the Wild and

Seenic Rivers Act of 1968, 16 U.S.C.

§§ 1271-1287 (1982), and the Forest Service

restricts traffic on it between Memorial

Day and Labor Day by requiring all] persons

to obtain permits through a random computer

lottery. Approximately 9,370 people

applied for permits for the 1983 regulated

season, and 639 permits were awarded.

The Forest Service denied Minnis's

request for the permit applicant list on the

basis that disclosure would violate the

privacy exemption to FOIA, 5 U.S.C.

§ 552(b)(6). Minnis then filed this

action. The district court concluded, on

the basis of facts that were not materially

disputed, that there was a strong public

interest in Minnis informing permit

applicants about available accommodations

on the River, and that release of the list

App. 6

to Minnis would entail no more than a

minimal invasion of privacy. It ordered

disclosure plus an award of attorney fees

pursuant to 5 U.S.C. § 552(a)(4)(E). We

stayed action pending this appeal and now

reverse because we conclude that disclosure

would confer no discernible public benefit

and would entail more than a_e minimal

invasion of privacy.

FOIA's privacy exemption applies to

"personnel and medical files and similar

files the disclosure of which would consti-

tute a clearly unwarranted invasion of per-

sonal privacy." 5 U.S.C. § 552(b)(6). To

fall within the exemption, the information

requested must be contained in a personnel,

medical, or similar file. The Supreme Court

has defined “similar file" broadly as

government records containing “information

which applies to a particular individual."

United States Department of State v.

Washington Post Co., 456 U.S. 595, 602

App. 7

(1982.1/ See Washington Post Co. v. United

States Department of Health and Human

Services, 690 F.2d 252, 260 (D.C. Cir.

1982). Lists of names and addresses meet

this definition. Van Bourg, Allen,

Weinberg & Roger v. NLRB, No. 83-1722, slip

op. at 1490 (9th Cir. March 22, 1984); see

also Wine Hobby USA, Inc. v. United States

Internal Revenue Service, 502 F.2d 133, 135

(3d Cir. 1974). The issue here, therefore,

is whether release of the _ information

requested would be a clearly unwarranted

invasion of personal privacy. United

States Department of State v. Washington

Post Co., 456 U.S. at 602.

To determine whether an invasion of

privacy is clearly unwarranted, this court

balances four factors: (1) the plaintiff's

interest in disclosure; (2) the publie

interest in disclosure; (3) the degree of

the invasion of personal privacy; and (4)

the availability of any alternate means of

App. 8

obtaining the requested information. Van

Bourg, Allen, Weinberg & Roger v. NLRB, slip

op. at 1490; Church of Scientology of

California v. United States Department of

the Army, 611 F.2d 738, 746 (9th Cir. 1979).

Even though we construe exemptions from

FOIA disclosure narrowly, Department of the

Air Force v. Rose, 425 U.S. 352, 361-62

(1976), the balance here weighs against

release of the information.

Minnis's’_ principal interest in

obtaining the permit applicant list is

purely commercial in character. He wants to

advertise his lodge to people who are inter-

ested in visiting the Rogue River. At least

one other circuit has considered such a

commercial interest in the context of the

privacy exemption. Wine Hobby USA, Ine. v.

United States Internal Revenue Service, 502

F.2d 133 (3d Cir. 1974). In Wine Hobby, a

distributor of wine-making equipment

requested the names and addresses. of

App. 9

persons registered with the United States

Bureau of Alcohol, Tobacco and Firearms to

produce wine for family use. The court

denied the request, reasoning that Congress

did not intend FOIA to allow the disclosure

of names of potential customers to commer-

cial businesses. Id. at 137. The court

concluded that, absent any asserted public

interest in disclosure, a commercial

interest would not justify the invasion of

privacy. Id. See also HMG Marketing

Associates v. Freeman, 523 F. Supp. 11, 14

(S.D.N.Y. 1980) (list of people who ordered

specially minted silver sollars exempt from

disclosure to direct mail advertiser

because court "hard pressed" to discern any

public interest in advertiser's acquisition

of the mailing list).

We agree with the Third Circuit

that commercial interest should not weigh

in favor of mandating disclosure of a name

and address list. Congress designated FOIA

App. 10

"to ensure an informed citizenry . .

needed to check against corruption and to

hold the governors accountable to the

governed," NLRB v. Robbins Tire & Rubber

Co., 437 U.S. 214, 242 (1978), and "to open

agency action to the light of publie seru-

tiny." Department of the Air Force vy.

Rose, 425 U.S. at 361. FOIA was not

intended to require release of otherwise

private information to one who intends to

use it solely for personal gain.

Minnis attempts to distinguish Wine

Hobby by arguing that disclosure of the list

would benefit the public in two ways: first,

because it would inform interested people

of available accommodations on the River;

and second, because the list would allow

Minnis to verify the fairness of the permit

lottery system.

In assuming that the publie would

benefit from the receipt of his direct mail

advertising, Minnis ignores the possibility

App. ll

that some members would be irritated rather

than enlightened by unwanted solicitations.

See Rowan v. United States Post Office

Department, 397 U.S. 728, 736 (1970). More-

over, Minnis can communicate his lodge's

availability to those who are interested by

advertising in specialty publications, con-

tacting local Chambers of Commerce, or

obtaining a listing in the telephone yellow

pages. Thus, he has not shown that govern-

ment disclosure of this list is needed to

inform the interested public. Use of the

list for advertising purposes confers no

public benefit weighing in favor of disclo-

sure.

Minnis is on stronger ground in

arguing that there is a public benefit in

allowing outside scrutiny of the permit

lottery's fairness. See Department of the

Air Force v. Rose, 425 U.S. at 360-62; EPA

v. Mink, 410 U.S. 73 (1973). The difficulty

is, however, that the information Minnis

App. 12

seeks would not further such an objective.

The Forest Service submitted an uncontrad-

ieted affidavit that disclosure of names

and addresses alone would not enable Minnis

to assess the fairness of the lottery; he

also wuld need other informaticn, including

the size of the parties, the types of craft,

and the dates requested; Minnis has not

asked the Forest Service for this informa-

tion. The district court itself observed

that Minnis had not explained how disclos-

ure would help him oversee the lottery's

fairness. Thus, we must conclude that there

is little or no publie interest served by

disclosure of the information sought.

Against the asserted private and

public interest in disclosure, which is

negligible, we must balance the degree of

invasion of ther permit applicants' privacy

interests. Disclosure would reveal not

only the applicants' names and addresses,

but also their personal interests in water

=<

App. 13

sports and the out-of-doors. See Wine

Hobby, 502 F.2d at 137. Other commercial

advertisers could obtain the list, subj-

ecting the applicants to an_ unwanted

barrage of mailings and personal solicita-

tions. Id. See American Federation of

Government Employees Local 1923 v. United

States Department of Health and Human

Services, 712 F.2d at 931, 932 (4th Cir.

1983). Thus, contrary to the district

court's conclusion, disclosure would impli-

cate more than a minimal privacy interest.

Indeed, this court recently recognized the

privacy interest in a name and address list

in Van Bourg, Allen, Weinberg & Roger vy.

NLRB, supra, involving a rival union's

request for the list of eligible voters in a

representation election. Slip op. at 1488.

In allowing disclosure, this court emphas-

ized that the parties to the election

already had a copy of the list, slip op. at

1491, and that the public would benefit from

App. 14

ensuring the fairness of union elections.

Id. The factors militating in favor of dis-

elosure in that case do not exist here.

While we note that Minnis had no

alternative means for obtaining the exact

list he requests, Chureh of Scientology of

California, 611 F.2d at 746, this factor

alone is not determinative, particularly

since alternative means exist to further

the commercial interest for which the

information is sought. Minnis's interest

in obtaining the list is commercial; no dis-

ecernible public benefit would result from

disclosure; and more than a minimal privacy

interest is involved. We conclude that the

invasion of privacy here is "clearly unwar-

ranted." 5 U.S.C. § 552(b)(6). Accordi-

ngly, we reverse the judgment of the

district court and the award of attorney

fees to plaintiff.

OM an na the 0 NE AM aot A 8

App. 15

FOOTNOTE

1/ Minnis filed an action for the list of

all permit recipients prior to United

States Department of State v. Washington

Post Co., 456 U.S. 595 (1982). The district

court in the earlier action ordered

disclosure on the basis that names and

addresses were not a "similar file." The

district court never addressed whether dis-

closure would be "clearly unwarranted."

Minnis's argument that the Forest Service

is collaterally estopped from relitigating

the "similar file" issue, however, lacks

merit. It has long been the rule in this

circuit that an intervening Supreme Court

decision clarifying an issue that had been

uncertain in the lower courts’ defeats

collateral estoppel. See Segal v. American

Telephone & Telegraph Co., 606 F.2d 842,

845-46 (9th Cir. 1979).

App. 16

UNITED STATEDS DISTRICT COURT

DISTRICT OF OREGON

MARK G. MINNIES,

Plaintiff,

)

)

)

)

v.

UNITED STATES DEPARTMENT OF )

AGRICULTURE, R. MAX PETERSON)

individually and as Chief, )

United States Forest )

Service; R. E. WORTHINGTON, )

individually and as Regional)

Forester, Region 6, United )

States Forest Service; and )

WILLIAM E. BUTLER, individu-)

ally and as District Ranger, )

Galice Ranger District, )

United States Forest Service)

)

Defendants. )

Jeffrey B. Wihtol

Cooney & Crew

Civil No. 83-469-FR

. OPINION AND

ORDER

1618 SW First Avenue, Suite 205

Portland, OR 97201

Attorneys for Plaintiff

Charles H. Turner, U.S. Attorney

Judith D. Kobbervig,

Asst. U.S.Attorney

312 United States Courthouse

Portland, OR 97205

Attorneys for Defendants

FRYE, Judge:

Sk brandi sl ee Sin ced Oran ows ache 2

App. 17

This matter is before the court on

eross motions for summary judgment. Plain-

tiff seeks disclosure under the Freedom of

Inforamtion Act, 5 U.S.C. § 552, of the

names and addresses of private permit trip

applicants for the 1983 regulated Rogue

River season, Defendants have previously

disclosed to plaintiff the names~ and

addresses of private permit trip recipients

for the years 1981 and 1982, pursuant to

this court's order of April 16, 1981 in a

previous case, Minnis v. U.S. Dept. f

Agriculture, et al., Civil No. 80-1138.

Plaintiff's request for information this

year was denied by defendants pursuant to

Exemption 6 of FOIA, 5 U.S.C. § 552(b)(6),

which protects against disclosure of infor-

mation which would constitute a clearly

unwarranted invasion of personal privacy.

Plaintiff contends that defendants’ are

barred by collateral estoppel from reliti-

gating this issue which was decided in the

App. 18

previous lawsuit and that the court's order

of April 16, 1981 compels defendants to dis-

close the requested information. Defend-

ants contend that the undisputed facts of

this case differ from the facts of the prev-

ious case and that under the new facts and

recent case law, judgment should be granted

in their favor.

SUBJECT MATTER JURISDICTION

Defendants argue that because

plaintiff did not appeal the Forest

Service's denial of this request, he failed

to exhaust his administrative remedies and

this court therefore lacks subject matter

jurisdiction. 5 U.S.C. § 552(a)(6)(A)(i)

requires agencies to determine whether to

comply with a request within ten days of its

receipt and to notify the person making the

request immediately. 5 U.S.C. § 552(a)

(6)(C) provides that a person making a

request shall be deemed to have exhausted

his administrative remedies with respect to

ar Sey Wate

App. 19

that request if the agency fails to comply

within the applicable time limits.

Plaintiff's original request for

information was dated February 28, 1983. On

March 7, 1983, the District Ranger wrote to

plaintiff, asking him the intended use of

the requested information. Plaintiff's

response is dated March 14, 1983. By letter

dated March 29, 1983, and mailed March 31,

1983, plaintiff's request was’ denied.

Defendants failed to make a determination

on plaintiff's request within the ten days

allowed by the statute. Hence, plaintiff is

deemed to have exhausted his administrative

remedies, and this court has subject matter

jurisdiction.

COLLATERAL ESTOPPEL

Plaintiff contends that collateral

estoppel entitles plaintiff to judgment as

a matter of law, since the issues and facts

decided in the previous case are the same as

those presented here; the parties are the

App. 20

same, with the addition of William E.

Butler; and the issues were actually liti-

gated and decided. See, Lewis v.

International Business Machines Corp., 393

F.Supp. 305, 307 (D.Ore. 1974).

In the previous case, plaintiff's

request for names and addresses of private

trip permittees on the Rogue River was

denied by the Forest Service pursuant to

Exemption 6 of FOIA, 5 U.S.C. § 552(b)(6).

This court examined the nature of the infor-

mation requested, the private and public

interests served by its disclosure, and

alternative means to the same end. It

determined that the requested information

did not come from personnel, medical or

"similar" files, and that its disclosure

would not constitute a clearly unwarranted

invasion of personal privacy; therefore, it

was not protected from disclosure by 5

U.S.C. § 552(b)(6).

App. 21

The information plaintiff seeks in

the instant case is not the same information

he sought before. Whereas before he sought

the names and addresses of permittees only,

plaintiff now seeks disclosure of the names

and addresses of all applicants for permits

to float the Rogue River during the regu-

lated period from Memorial Day through

Labor Day. Of the 9,372 applicants for

permits for the 1983 season, oniy 639

received permits. Plaintiff's stated

purpose in requesting this information is

to verify the fairness of the lottery.

Defendants have presented evidence to show

that disclosure of this information would

not serve that purpose and that alternative

means are available.

Sinee the facts and issues pre-

sented here are not the same ones decided

previously by this court, collateral

estoppel does not compel a judgment in favor

of plaintiff. The issues will be re-

App. 22

examined here in light of the new facts

presented, and with reference to. this

court's previous ruling.

THE PRIVACY EXEMPTION

The personal privacy exemption of

the FOIA applies to a request for informa-

tion if (1) the information comes from per-

sonnel, medical, or similar files; (2) the

disclosure of the information would consti-

tute an invasion of personal privacy; and

(3) the severity of the invasion would out-

weigh the publie interest in disclosure.

Sims v. Central Intelligence Agency, 642

F.2d 562, 573 (D.C.Cir. 1980). Four

factors must be balanced in weighing claims

of exemption for clearly unwarranted

invasions of privacy: (1) the plaintiff's

interest in disclosure; (2) the public

interest in disclosure; (3) the degree of

invasion of personal privacy; and (4) the

availability of any alternative means of

obtaining the requested information.

App. 23

Church of Scientology v. U.S. Dept. of the

Army, 611 F.2d 738, 746 (9th Cir. 1979). In

its order in the previous case, this court

decided that:

the names and addresses of the

private trip leader permittees for

the regulated 1980 Rogue River

season are not "similar" to person-

nel or medical files, that disclo-

sure of the permittees' names and

addresses would constitute a

minimal invasion of personal

privacy, that plaintiff has a

private commercial interest and the

public has an interest in disclo-

sure which outweighs the minimal

invasion, that no alternative means

for obtaining the information is

available to plaintiff, .. . and

that the requested information is

not exempt from disclosure under 5

U.8.C. [$ 552(b)(6)], ... and

that plaintiff's primary interest

in requesting the names and

addresses is commercial, .. .

Since this court's decision the United

States Supreme Court decided the case of

Dept. of State v. Washington Post Co.,

U.S. ., 102 &.Ct. 1957 (1982), in which

it held:

[We] do not think that Congress

meant to limit Exemption 6 to a

narrow class of files containing

App. 24

only a discrete kind of personal

information. Rather, "([t]he

exemption [was] intended to cover

detailed Government records on an

individual which can be identified

as applying to that individual."

H.R.Rep. No. 1497, supra, at ll,

U.S. Code Cong. & Admin. News

1966, p. 2438. When disclosure of

information which applies to a

particular individual is sought

from government records, courts

must determine whether release of

the information would constitute a

clearly unwarranted invasion of

that person's privacy.

102 S.Ct. at 1961. (Footnotes omitted.) The

District of Columbia Circuit has _ inter-

preted this to mean that "[a]1l information

which ‘applies to a particular individual’

is covered by Exemption 6, regardless of the

type of file in which it is contained."

Washington Post Co. v. U.S. Dept. of Health

and Human Services, 690 F.2d 252, 260

(D.C.Cir. 1982). Both parties to this

dispute agree that under. the Supreme

Court's ruling the information sought in

this case is covered by Exemption 6 in that

it eomes from medical, personnel, or

"similar" files. This court must still

Piet’

he PE Vey

App. 25

determine if disclosure would constitute an

unwarranted invasion of personal privacy.

In order to detemine if disclosure

of the names and addresses of the applicants

would constitute an unwarranted invasion of

the applicants’ personal privacy, the court

must balance the public and _ private

interest in the release of the information

against the invasion of privacy, and

consider alternative means to the - same

information. Plaintiff's private interest

is a commercial interest in soliciting

business for his lodge near the River.

Plaintiff intends to serve the _ public

interest by providing information about

public accommodations within the wilderness

area and by opening up the "secret" lottery

conducted by the Forest Service and verify-

ing its fairness. Defendants have

submitted the affidavit of Kenneth M.

Vines, Visitor Information Specialist at

the Galice Ranger District, who is

App. 26

responsible for administering the lottery.

Vines states that the names and addresses of

applicants can in no way explain or verify

the fairness and accuracy of the lottery.

Vines states that as part of his job he

educates the public, either in person or

through the media as to how the lottery

system works and how to _ use it. The

government has submitted a document

explaining the lottery system and how the

computer randomly selects from among the

applicants. Furthermore, in the letter of

March 29, 1983, denying plaintiff's

request, the Regional Forester’ invited

plaintiff to meet with the District Ranger

and discuss the lottery.

Plaintiff does not explain how he

intends to use this information to verify

the fairness of the system. He argues that

the list of names and addresses is necessary

to verify that each applicant is actually

put into the lottery system. There is a

App. 27

public interest in assuring that each step

in the lottery procedure is carried out

fairly and carefully. It is possible that

this interest can be served and the fairness

ascertained without disclosing the names

and addresses of all applicants, but

certainly no harm is done in allowing

citizen participation in making sure the

procedure is fair.

This court previously held that the

public had an interest in being informed

about accommodations available along the

River. This was in reference to plaintiff's

request for the names and addresses of

permittees, who would actually be

travelling along the River. The

information he now seeks includes the names

of approximately 8700 people who did not

receive permits for the summer. season.

However, these people are still free to

float the River during the non-regulated

part of the year, and the fact that they

App. 28

applied for permits indicates that they are

interested in the Rogue River and its

recreational opportunities. The public

interest in providing information about

Rogue River accommodations to this class of

people is still a compelling interest. The

government points out that 57 percent of all

applicants indicated on their applications

that they preferred not to have their names

and addresses disclosed for commercial or

political purposes. The results of this

poll are irreievant for the purposes of this

ruling.

Diselosure is favored under FOIA,

and the exemptions are to be narrowly

construed. Dept. of Air Force v. Rose, 425

U.S. 352, 361 96 S.Ct. 1592 (1976). The

court finds the invasion of the personal

privacy of the applicants to be minimal.

Furthermore, the court finds that’ the

public interest in disclosure outweighs the

minimal invasion of privacy and_ that

Po hy

App. 29

there is no alternative means by which

plaintiff can provide this information to

this group of persons.

IT Is HEREBY ORDERED that

plaintiff's motion for summary judgment is

GRANTED. Defendants' motion for summary

judgment is DENIED. Defendants are ordered

to iteetess the requested information to

plaintiff.

DATED this 3 day of June, 1983.

Helen J. Frye

Unites States District Judge

App. 30

Jeffrey B. Wihtol

Cooney & Crew

1618 S.W. First Avenue, #205

Portland, OR 97201

Telephone: (503) 221-1529

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARK G. MINNIS

Civil

Plaintiff, No. 83-469

J UDGMENT

ORDER

vs.

)

)

)

)

THE UNITED STATES DEPARTMENT )

OF AGRICULTURE, R. MAX )

PETERSON, individually and )

as Chief, United States )

Forest Service; R.E. :

)

)

)

)

)

)

)

)

)

WORTHINGTON, individually,

and as Regional Forester,

Region 6, United States

Forest Service; and WILLIAM

E. BUTLER, individually, and

as District Ranger, Galice

Ranger District, United

States Forest Service

Defendants.

This matter having come before the

Honorable Helen J. Frye for hearing, on May

16, 1983 on ecross-motions for summary judg-

ment, and on July 11, 1983 on plaintiff's

App. 31

motion for an award of attorneys fees and

litigation costs, Jeffrey B. Wihtol and

Cooney & Crew appearing in behalf of the

plaintiff, and Judith Kobbervig, Assistant

United States Attorney, appearing in behalf

of defendants, and the Court’ having

determined that plaintiff's request under

the Freedom of Information Act for the names

and addresses of the private permit

applicants for the regulated 1983 Rogue

River season is not exempt from disclosure

pursuant to 5 USC § 552(b)(6), as claimed by

defendants, and the Court further finding

that plaintiff should be awarded his

reasonable attorneys fees and litigation

costs reasonably incurred herein against

defendant United States Department of

Agriculture pursuant to 5 USC

§ 552(a)(4)(E), it is therefore ordered,

adjudged and decreed as follows:

1. Plaintiff's motion for summary

judgment is allowed;

App. 32

2. Plaintiff's motion for an award

of reasonable attorneys' fees and

litigation costs is allowed;

3. Defendants' Motion for Summary

Judgment is denied;

4. Defendants shall immediately

make available to plaintiff the names and

addresses of the private permit’ trip

applicants for the 1983 regulated Rogue

River season.

5. Plaintiff shall have judgment

against defendant United States Department

of Agriculture for plaintiff's reasonable

attorneys fees and litigation costs

incurred herein, the exact sum and the

reasons allowing said sum to be set forth re

separate order.

6. The Court denies plaintiff's

motion to invoke the provisions of 5 USC

§552(a)(4)(F).

App. 33

Dated this 12 day of Aug., 1983.

s/s Helen J. Frye

Helen J. Frye

U.S. District Court

Judge

PRESENTED BY:

/s/ Jeffrey 8B. Wihtol

Jeffrey B. Wihtol

Of Attorney for Plaintiff

App. 34

IN THE UNITED STATES DISTRICT COURT

: FOR THE DISTRICT OF OREGON

MARK G. MINNIS,

Civil No. 80-1138

Plaintiff,

JUDGMENT ORDER

V.

MENT OF AGRICULTURE,

R. MAX PETERSON, and

R.E. WORTHINGTON,

)

)

)

)

)

)

UNITED STATES DEPART- )

)

)

)

)

Defendants. )

The above-captioned matter having

come before The Honorable Helen J. Frye in

the above-entitled court on Monday, April

13, 1981, on defendants' motions to dismiss

or in the alternative for summary judgment,

and for protective order, and plaintiff's

motion for summary judgment, defendants

appearing by their attorney Judith D.

Kobbervig, and plaintiff appearing by his

attorneys Morrison, Dunn, Cohen, Miller &

Carney, and Jeffrey B. Wihtol, and the Court

having determined that the names-~ and

addresses of the private trip leader

permittees for the regulated 1980 Rogue

App. 35

River season are not "Similar" to personnel

or medical files, that disclosure of the

permittees' names and addresses would

constitute a minimal invasion of personal

privacy, that plaintiff has a= private

commercial interest and the publie has an

interest in disclosure which outweighs the

minimal invasion, that no alternative means

for obtaining the information is available

to plaintiff, that defendants' refusal to

disclose the requested information was not

unreasonable, and that the requested

information is not exempt from disclosure

under 5 U.S.C. § 772b(6), and finding no

need to punish’ defendants, and that

plaintiff's primary interest in requesting

the names and addresses is conmercial, now,

therefore, it is ordered and adjudged as

follows:

1. Plaintiff's motion for summary

judgment be and hereby is allowed;

App. 36

2. Plaintiff's request for an

award for attorney's fees is denied;

3. Defendant's motion to dismiss

is allowed with respect to the individual

defendants, R. Max Peterson, and R.E.

Worthington, and that defendant's motion to

dismiss or in the alternative for summary

judgment is denied in all other respects;

4. Defendants' motion for a

protective order is rendered moot by the

foregoing rulings;

5. Defendant United States

Department of Agriculture shall promptly

make available to plaintiff the names and

addresses of the private trip leader

permittees for the regulated 1980 Rogue

River season and plaintiff shall recover

his costs and disbursements incurred

herein.

App. 37

DATED this 16 day of April, 1981.

s/s Helen J. Frye

United States District Judge

Presented by:

s/s Jeffrey B. Wihtol

Jeffrey B. Wihtol