Opposition Brief — Pion v. Office of Personnel Management

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Iu the Supreme Court of the United States

OCTOBER TERM, 1986

RUSSELL N. PION, PETITIONER

OFFICE OF PERSONNEL MANAGEMENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DAVID M. COHEN

ROBERT A. REUTERSHAN

STEPHEN J. MCHALE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

SE ET TR REET AED EET

—

QUESTION PRESENTED

Whether the Merit Systems Protection Board

abused its discretion by assigning to petitioner the

burden of proving his continuing eligibility for civil

service disability retirement benefits.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Chavez v. OPM, 6 M.S.P.R. 404 (1981) .................--- 7

Heckler v. Kuehner, 469 U.S. 977 (1984) ................. 10

Heckler v. Lopez, 469 U.S. 1082 (1984) ................... 10

Lee v. OPM, 762 F.2d 987 (Fed. Cir. 1985) ............. 13

Lindahl v. OPM, 470 U.S. 768 (1985), on remand,

776 F.2d 276 (Fed. Cir. 1985), cert. denied, No.

85-6214 (May 12, 1986) ......................--..... 4, 5, 6, 7, 12, 18

Matthews v. Eldridge, 424 U.S. 319 (1976) -........... 9

McAulay v. Heckler, 749 F.2d 1500 (11th Cir.

Neen sc onicnabaeriinnanvarnntent 9

Prestien v. MSPB, 8 M.S.P.R. 698 (1981) -.............. 5,8

Simpson v. Schweiker, 691 F.2d 966 (11th Cir.

Ns saicn aishinsiogianeas 9

Scroggins v. United States, 397 F.2d 295 (Ct. Cl.),

cert. denied, 393 U.S. 952 (1968) .........................- 4

Smith v. OPM, 760 F.2d 244 (Fed. Cir. 1985) _...... 13

Smith v. OPM, 784 F.2d 397 (Fed. Cir. 1986) _...... 13

United States v. Erika, Inc., 456 U.S. 201 (1982)... 7

United States v. New York, N.H. & H.R.R., 355

i scamniendeaninnive 8

Vaughn v. Heckler, 727 F.2d 1040 (11th Cir.

sec unvanbcnennpaasverioe 9

Warren Vv. Bowen, 804 F.2d 1120 (9th Cir. 1986)... 11

. (111)

Statutes and rule: Page

Civil Service Reform Act of 1978, Pub. L. No. 95-

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Civil Service Retirement Act, 5 U.S.C. 8301 ef seq.:

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SS asailahiateamieanaenes 2,5

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Be IER ED ssihnccbncie ssa cncntencrencsaencctenperenaes 5,

eee I ii rcieinacce eientainbarecntenannnses 6,

Social Security Disability Benefits Reform Act of

1984, Pub. L. No. 98-460, 98 Stat. 1794, 42 U.S.C.

CE FI, TE Gee, OS OI vein caceiveceretenetarweweeeerennnse 9

§ 2(a), 98 Stat. 1794 (42 U.S.C. -(Supp. III)

8 RS REA ROR RIE. «OSS SNA Oe 9,10

§ 2(a), 98 Stat. 1794 (42 U.S.C. (Supp. III)

ef REPRESSES REE Seto eaent er en 10

§ 2(d) (2) (C), 98 Stat. 1797 (42 U.S.C.

ad cciaebiine 10

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Oe rte MI I OED I onsen senrerresoscosinens 11

42 U.S.C. (Supp. IIT) 423(d) (5) (A) ..........02 ww... 9

ii cetiemidoninion 4

Miscellaneous:

H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess.

I Sekitsicttes ie ce ee aca ok ee ak 11

H.R. Rep. 98-618, 98th Cong., 2d Sess. (1984) ........ 11

S. Rep. 98-466, 98th Cong., 2d Sess. (1984) -..00....... 11

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1224

RUSSELL N. PION, PETITIONER

Vv.

OFFICE OF PERSONNEL MANAGEMENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A8-A9) and the opinion of the Merit Systems Pro-

tection Board (Pet. App. Al-A7) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on October 31, 1986, and the petition for a writ of

certiorari was filed on January 27, 1987. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATUTE INVOLVED

Relevant portions of 5 U.S.C. 8337 and 8347 are

reproduced at Pet. App. A10-A12.

STATEMENT

1. Petitioner was employed by the Social Security

Administration as a GS-10 social insurance repre-

sentative. On April 29, 1977, the United States Civil

Service Commission granted petitioner’s application

for civil service disability retirement benefits because

of his poor eyesight. Eight years later, while peti-

tioner was gainfully employed as a Senior Claims

Examiner for the State of Rhode Island, the Office

of Personnel Management (OPM) notified him that

his disability annuity would be terminated. This no-

tice was based on OPM’s conclusion that petition-

er’s medical condition had improved to the point

where he no longer was disabled within the meaning

of the Civil Service Retirement Act, 5 U.S.C. 8337

(d).1 OPM denied petitioner’s request for reconsid-

eration on July 25, 1985. Pet. App. A2.

2. Petitioner then sought review by the Merit

Systems Protection Board (MSPB). In a decision

dated September 25, 1985, a MSPB presiding official

affirmed OPM’s decision, holding that petitioner had

failed to sustain his burden of establishing that he

remained disabled from providing useful and effi-

cient service in his former position (Pet. App. Al-

A5). Specifically, the presiding official found that

1 Pursuant to the Civil Service Reform Act of 1978, Pub. L.

No. 95-454, 92 Stat. 1111 et seq., responsibility for determin-

ing eligibility for disability retirement benefits was trans-

ferred from the Civil Service Commission to OPM. See 5

U.S.C. 8347.

petitioner’s eyesight had improved significantly since

his retirement (7d. at A3) :

The agency submitted a June 17, 1985 letter

from Dr. Paul Sydlowski, M.D., a specialist in

Ophthalmology. Dr. Sydlowski indicated that

[petitioner] had been his patient for eight years.

In 1977 [petitioner’s] vision was 20/400 and

20/200. Cataract surgery was performed in

1977. [Petitioner] had four other operations on

his eye resulting in a 20/25 range in his one

good eye (the other remained 20/400). He indi-

cated [petitioner] could not drive because he was

legally blind. He noted [petitioner] could be

gainfully employed without reliance on his loss

of peripheral field.

The presiding official also reviewed the evidence con-

cerning petitioner’s leg problem and concluded (id.

at A3-A4):

Based upon the record before me, I find that

[petitioner] has not shown he is disabled for

useful and efficient service in the position of So-

cial Insurance Representative. Dr. Sydlowski

indicated [petitioner’s] eye problem would not

keep him from being gainfully employed. Addi-

itonally, [petitioner’s] leg problem did not pre-

vent him from successfully working at a seden-

tary job for several years for the State of Rhode

Island. [Petitioner’s] former position of Social

Insurance Representative is a sedentary position

much like the position he has been performing

with Rhode Island. Although [petitioner] cred-

ibly testified about the differences in the two

jobs, this evidence is insufficient without medical

evidence showing he was unable to perform the

duties of his former federal position. Therefore,

I find he has not shown that his medical prob-

lem would keep him from performing his duties

of Social Insurance Representative.

The full MSPB denied petitioner’s petition for re-

view on January 7, 1986 (Pet. App. A6-A7).

3. In a brief unpublished opinion dated October

31, 1986, the court of appeals affirmed the MSPB’s

decision (Pet. App. A8-A9). The court of appeals

noted that, under Lindahl v. OPM, 470 U.S. 768

(1985), judicial review of MSPB decisions in civil

service disability retirement cases is limited to deter-

mining “whether ‘there has been a substantial de-

parture from important procedural rights, a miscon-

struction of the governing legislation, or some like

error “going to the heart of the administrative de-

termination.”’” Pet. App. A9 (quoting 470 U.S.

at 791 and Scroggins v. United States, 397 F.2d 295,

297 (Ct. Cl.), cert. denied, 393 U.S. 952 (1968) ).

In this case, the court concluded, “such an error has

not been established” (Pet. App. AQ).

ARGUMENT

The unpublished and nonprecedential decision of

the court of appeals is correct and does not conflict

with any decision of this Court or of another court

of appeals.* Nor does it present any issue of special

importance warranting review by this Court. The

Federal Circuit has exclusive jurisdiction to enter-

tain appeals from MSPB decisions in civil service

retirement cases. See 5 U.S.C. 7703(b)(1) and 28

U.S.C. 1295(a) (9). Accordingly, judicial review of

2? Rule 18(a) of the Federal Circuit’s Rules provides that

“To]pinions designated as unpublished shall not be employed

as precedent by this court, nor may they be cited by counsel

as precedent, except in support of a claim of res judicata,

collateral estoppel, or law of the case.”

the procedures followed by the MSPB in its adjudi-

cation of such cases is a matter within the special

competence of the Federal Circuit. This Court re-

cently denied review of the Federal Circuit’s decision

sustaining the MSPB’s general approach to the allo-

cation of the burden of proof in civil service disabil-

ity retirement cases. See Lindahl v. OPM, 776 F.2d

276 (1985), cert. denied, No. 85-6214 (May 12,

1986). There is no reason for a different disposition

of petitioner’s challenge to the particular application

of that general approach in the context of an annui-

tant’s continuing eligibility for benefits.

1. Petitioner contends (Pet. 5-18) that the MSPB

acted arbitrarily and capriciously in following a rule

of decision under which an annuitant bears the bur-

den of establishing that he continues to be disabled.

The adjudicatory approach that petitioner challenges,

however, is fully supported by the text of the Civil

Service Retirement Act and the opinions of this

Court and the Federal Circuit in Lindahl. Moreover,

that approach was followed by the MSPB’s predeces-

sor agency, the Civil Service Commission, and it was

formally carried forward by the MSPB almost six

years ago in Prestien v. MSPB, 8 M.S.P.R. 698

(1981). This established practice clearly is not arbi-

trary or capricious.

a. The MSPB’s review of civil service disability

retirement claims is governed by 5 U.S.C. 8347. Sub-

sections (a) through (c) of Section 8347 provide for

OPM to administer the retirement program, to pre-

scribe regulations for that purpose, and to adjudi-

cate claims. Subsection (d)(1) then provides that,

“[s]ubject to paragraph (2) of this subsection,” a

decision by OPM on an application for retirement

benefits “may be appealed to the Merit Systems Pro-

tection Board under procedures prescribed by the

Board” (emphasis added). The emphasized phrase

makes it clear that Congress did not impose rigid

procedural rules upon the MSPB, but rather vested

the Board with broad discretion to adopt such rules

as it finds appropriate for the adjudication of civil

service retirement cases. Accordingly, as the court

of appeals correctly held in Lindahl v. OPM, 776 F.2d

at 278-279, the MSPB was not barred by the Civil

Service Retirement Act from allocating the burden

of proof to the former employee in such cases.

This conclusion is confirmed by reference to para-

graph (2) of Section 8347(d). That paragraph pro-

vides that the “procedures under section 7701” of

Title 5 shall apply in a limited class of cases, namely,

those in which the agency has filed an application for

disability retirement of an employee based upon the

employee’s mental condition. One of the “procedures

under section 7701” that is thereby incorporated is

set forth in Section 7701(c)(1)(B), which permits

the MSPB to sustain an agency’s decision only if it

is supported by a preponderance of the evidence;

that provision has the effect of placing the burden of

proof on the agency in hearings regarding adverse

actions and similar cases governed by 5 U.S.C. 7701.

Thus, when Congress enacted Section 8347(d) (2) in

1980, it determined that agency-initiated disability

retirements based on an alleged mental impairment

were sufficiently like adverse actions to warrant ap-

plication of the same procedural protections that em-

ployees are afforded in adverse actions. See Lindahl

v. OPM, 470 U.S. at 783-785. But Congress has re-

frained from imposing the burden of proof on the

agency in any other civil service retirement cases.

This omission strongly supports the reasonableness

otf the MSPB’s administrative decision not to impose

the burden of proof on OPM in civil service disabil-

ity retirement cases generally. Compare United

States v. Erika, Inc., 456 U.S. 201, 206-208 (1982).

b. In accordance with the text of the governing

statutes, the Federal Circuit, on remand from this

Court’s decision in Lindahl, sustained the MSPB’s

practice of placing the burden of proof upon new

applicants for retirement benefits. That policy in

turn had been formally articulated by the Board in

Chavez v. OPM, 6 M.S.P.R. 404 (1981). The Board

there reasoned that (1) the governing statutes do

not mandate any particular allocation of the burden

of proof in retirement cases; (2) the longstanding

administrative practice has been to place the burden

upon the applicant to establish his eligibility for re-

tirement benefits; (3) the burden of proof is prop-

erly placed upon the person seeking entitlement to a

statutory benefit; and (4) it is reasonable to place

the burden upon the applicant because he normally

possesses or has ready access to the evidence relating

to his medical condition. Chavez, 6 M.S.P.R. at 414-

416. Moreover, as the court of appeals noted in

Lindahl, if Congress had desired to alter the prior

administrative practice and place the burden of

proof upon OPM, Congress could easily have done

so when it enacted the Civil Service Reform Act in

1978. See 776 F.2d at 279-280 (contrasting 5

U.S.C. 8847(d) (1) and (d)(2), discussed at page

6, supra). The fact that Congress declined to dis-

turb the prior administrative practice lends addi-

tional support to the reasonableness of the MSPB’s

overall approach.

ce. Consistent with its prior decision in Lindahl,

the court of appeals in the instant case correctly

sustained the MSPB’s conclusion that the burden of

proof on the question of eligibility for disability re-

tirement benefits should be allocated to the former

employee, not only when he first applies for benefits,

but also when his continuing eligibility is at issue.

In following that approach in this case, the Board

relied upon its earlier decision in Prestien v. OPM,

8 M.S.P.R. 698 (1981), where it reasonably deter-

mined that the rationale of Chavez also applies in the

present context.

The MSPB noted in Prestien that the practice of

the Civil Service Commission had been to require the

annuitant to establish his continuing eligibility for

benefits. 8 M.S.P.R. at 704.2% In Prestien, as in

Chavez, the MSPB found no indication that Congress

intended to overturn that settled practice when it

enacted the Civil Service Reform Act of 1978. See

8 M.S.P.R. at 704-705 & n.7. And in Prestien, as in

Chavez, the Board reasonably concluded that it was

fair to place the burden upon the annuitant because

he has primary access to the evidence necessary to

establish his continuing disability (8 M.S.P.R. at

704-705). Compare United States v. New York,

N.H. & H.R.R., 355 U.S. 258, 256 n.5 (1957).

d. The reasonableness of the MSPB’s approach is

further supported by administrative experience and

3 Petitioner asserts in passing (Pet. 13-14) that the Civil

Service Commission in fact did not place the burden of proof

on the annuitant to establish his continuing eligibility. How-

ever, petitioner offers no rebuttal to the MSPB’s reading of

the Commission’s precedents. In any event, the assessment of

the past practices of the responsible agency (and of its prede-

cessor) is a matter properly committed to that agency’s ex-

pertise, and petitioner has not shown that the MSPB’s deter-

mination in Prestien was clearly erroneous.

congressional action under the Social Security dis-

ability program. This Court recognized in Mathews

v. Eldridge, 424 U.S. 319, 336 (1976), that that pro-

gram places the burden on the claimant “to establish

initial and continued entitlement to disability bene-

fits’ (emphasis added). The claimant’s burden of

proof in this regard is prescribed by 42 U.S.C. (Supp.

III) 423(d)(5)(A), which provides that “[a]n in-

dividual shall not be considered to be under a dis-

ability unless he furnishes such medical and other

evidence of the existence thereof as the Secretary

may require.”

Ignoring both Mathews v. Eldridge and Section

423(d)(5)(A), petitioner argues (Pet. 11-12) that

the burden is <n the Secretary of HHS to establish

that the Social Security recipient has recovered from

his disability. However, the cases cited by petitioner

(McAulay v. Heckler, 749 F.2d 1500 (11th Cir.

1985); Vaughn v. Heckler, 727 F.2d 1040 (11th Cir.

1984); Simpson v. Schweiker, 691 F.2d 966 (11th

Cir. 1982) )—which have since been superseded (see

pages 9-11, infra)—stood only for the proposition

that under principles of administrative res judicata,

the original finding of disability should control at a

subsequent proceeding to review the claimant’s con-

tinuing eligibility, in the absence of some evidence

of medical improvement. Indeed, the court of appeals

in Simpson specifically noted that the burden re-

mained upon the annuitant to prove both initial and

- continuing eligibility for benefits (691 F.2d at 969).

Whatever the prior state of the law, however, the

Social Security cases cited by petitioner do not take

account of the amendments made by Section 2(a) of

the Social Security Disability Benefits Reform Act of

1984, Pub. L. No. 98-460, 98 Stat. 1794 et seq. (codi-

fied at 42 U.S.C. (Supp. III) 423(f)).* Those amend-

ments prescribe detailed standards for review of the

continuing eligibility of persons currently receiving

disability benefits. As relevant here, the amendments

provide, subject to certain exceptions, that an indi-

vidual’s benefits may be terminated only if there is

substantial evidence that his medical condition has

improved and that he is now able to engage in sub-

stantial gainful activity. 42 U.S.C. (Supp. III)

423(f) (1).

Significantly, however, although several courts had

held before passage of the 1984 Act that a prior find-

ing of disability created a presumption of continuing

disability and shifted the burden to the Secretary to

prove that the individual’s medical condition had im-

proved, that approach was rejected by Congress in

1984. Instead, Congress provided in the final para-

graph of 42 U.S.C. (Supp. III) 423(f) that a deter-

mination regarding continuing disability shall be

made “without any initial inference as to the pres-

ence or absence of disability being drawn from the

*Two of the three appellate cases cited by petitioner,

Vaughn and Simpson, were decided before the 1984 Act was

signed into law on October 9, 1984. The third case, McAulay,

was decided on January 8, 1985, but the court of appeals did

not discuss the 1984 Act. Indeed, it would appear that the

court of appeals in McAulay erred in even reaching the mer-

its of the benefits termination issue. Under Section 2(d) (2)

in court on September 19, 1984, that raised the medical im-

provement issue was to be governed by the new statutory

medical improvement standards in the 1984 Act, and McAulay

therefore should have been remanded to the Secretary for

review in accordance with those standards. See Heckler v.

Kuehner, 469 U.S. 977 (1984); Heckler v. Lopez, 469 U.S.

1082 (1984).

fact that the individual has previously been deter-

mined to be disabled.” In addition, the Conference

Report emphasizes that determinations under the

new substantive standards prescribed by the 1984

Act are to be governed by the same burden-of-proof

standards that already were established by 42 U.S.C.

423—“[t]hat is, the claimant’s obligations to estab-

lish the existence of his disability with regard to the

CDI [Continuing Disability Investigation] proceed-

ing are the same as his obligations with regard to

an initial determination.” H.R. Conf. Rep. 98-1039,

98th Cong., 2d Sess. 26 (1984).° The 1984 Act there-

fore superseded prior appellate decisions to the ex-

tent that they shifted to the Secretary the burden of

proof or production on the question of whether the

claimant’s disability had ceased. See, e.g., Warren v.

Bowen, 804 F.2d 1120, 1121 (9th Cir. 1986).

In sum, as the foregoing discussion makes clear,

the MSPB’s determination in Prestien that the annui-

tant should bear the burden of establishing his con-

tinuing entitlement to civil service disability benefits

is strongly supported by Congress’s considered judg-

ment to the same effect as regards continuing eligi-

bility for Social Security disability benefits.

5 See also H.R. Rep. 98-618, 98th Cong., 2d Sess. 9 (1984)

(“[T]he Supreme Court, in Mathews v. Eldridge, agreed with

the agency that the burden of proving continuing eligibility

for benefits was on the beneficiary.’”’) ; id. at 11 (because the

- standards for termination of benefits were not set forth in

the Act prior to 1984, SSA “ha[d] wide discretion to apply

whatever standards it deemed appropriate”); S. Rep. 98-466,

98th Cong., 2d Sess. 10 (1984) (“[T]he Committee consid-

ered carefully and rejected the proposal to shift the burden

of proof in eligibility determinations from the claimant to

the Government once the individual is on the benefit rolls.’’).

12 :

e. Against this background, the MSPB’s allocation

of the burden of proof in this case was, at the very

least, not arbitrary and capricious or an abuse of

discretion, as petitioner contends (Pet. 6, 8, 18). Nor

does it furnish a basis for setting aside the Board’s

decision under the standard of review endorsed by

this Court in Lindahl, 470 U.S. at 791. The Board’s

decision in this case to follow the procedural ap-

proach previously used by it and by the Civil Service

Commission prior to 1978 plainly does not constitute

a “ ‘substantial departure from important procedural

rights’ (470 U.S. at 791). Similarly, the MSPB’s

allocation of the burden of proof under a statute that

on its face commits that matter to the Board’s discre-

tion entails no “ ‘misconstruction of the governing

iegislation’” (ibid.). Nor, finally, is there any error

“going to the heart of the administrative determina-

tion” (ibid.), because there is nothing fundamentally

unfair about requiring a person who seeks to receive

future statutory benefits to bear the burden of estab-

lishing his entitlement to do so, whether or not he

has received such benefits in the past.

2. Petitioner also challenges (Pet. 19-25) the

MSPB’s factual determination that he is not “dis-

abled” within the meaning of the Civil Service Re-

tirement Act. However, judicial review of that de-

termination is expressly barred by statute. Under

5 U.S.C. 8347(c), OPM has the responsibility to “de-

termine questions of disability,” and the decisions of

OPM on these matters “are final and conclusive and

are not subject to review.” In Lindahl, the Court

construed this language to bar judicial review of

“OPM’s factual determinations about ‘questions of

disability’ ” (470 U.S. at 779 (emphasis in origi-

nal)). See also 470 U.S. at 791 (“the factual under-

pinnings of § 8347 disability determinations may not

be judicially reviewed”); id. at 779 n.12, 780, 787

n.22.

Petitioner seeks to avoid this bar by asserting that

there is no evidence in the record to support the

MSPB’s decision in this case and that judicial review

should be available with respect to that question not-

withstanding the language of 5 U.S.C. 8347(c) and

Lindahl. There is no merit to this argument. A dis-

ability retirement claimant may not avoid the bar to

judicial review of the “factual underpinnings” of the

administrative decision (Lindahl, 470 U.S. at 791)

merely by asserting that are no factual underpin-

nings to support that decision. The Federal Circuit

therefore has correctly rejected this and similar ef-

forts to avoid the statutory bar in 5 U.S.C. 8347(c)

and this Court’s decision in Lindahl. See Smith v.

OPM, 784 F.2d 397 (Fed. Cir. 1986); Lee v. OPM,

762 F.2d 987 (Fed. Cir. 1985); Smith v. OPM, 760

F.2d 244 (Fed. Cir. 1985). We note as well that

where, as here, the burden is on the person seeking

statutory benefits, it is not logically necessary for the

record to contain evidence affirmatively showing that

the former employee is not disabled, because, in ap-

propriate circumstances, benefits may be denied

solely on the ground that the former employee has

not proved that he is disabled.

In any event, there in fact was medical evidence

in the record before the MSPB that documented a

- significant improvement in petitioner’s eyesight. Be-

tween the time of petitioner’s retirement and the

time of the termination of his disability annuity, his

eyesight in one eye improved from 20/200 to 20/25,

and petitioner’s own ophthalmologist concluded that

petitioner could be gainfully employed notwithstand-

ing his loss of peripheral vision (Pet. App. A3). In-

deed, petitioner in fact was gainfully employed by

the State of Rhode Island. The court of appeals

therefore had no occasion to address petitioner’s con-

tention that review should be available in the ab-

sence of any evidence that petitioner is not disabled,

and it did not purport to do so (id. at A9). That

question therefore is not properly presented for re-

view by this Court.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.