United States of America ex rel v. Infante-Green et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES OF AMERICA,
ex
rel. OCEAN STATE TRANSIT, LLC,
d/b/a Student Transportation of
America, Inc.,
a Rhode Island limited
liability company
Plaintiff,
v.
ANGELICA INFANTE-GREEN,
in
her personal capacity, JOHN, AND
JANE DOES 1-5,
in their individual
capacities,
Defendants.
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C.A. No. 1:21-CV-00391-MSM-PAS
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
This is a qui tam suit brought on behalf of the United States of America by
relator 	Ocean 	State 	Transit, 	LLC 	(“Ocean 	State”) 	against 	Rhode 	Island
Commissioner of Elementary and Secondary Education Angélica Infante-Green and
several other unnamed state officials in their individual capacities. 	Ocean State
alleges that Commissioner Infante-Green violated the Federal False Claims Act
(“FCA”), 31 U.S.C. § 3729,
et seq., by falsely certifying that the Rhode Island
Department of Elementary and Secondary Education (“RIDE”) complied with a
requirement in the federal COVID-19 relief statutes – the Coronavirus Aid, Relief,
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and Economic Security Act (the “CARES Act”), the Consolidated Appropriations Act
(“CAA”), and the American Rescue Plan Act (“ARPA”) – requiring that RIDE “shall
to the greatest extent practicable, continue to pay its employees and contractors
during the period of any disruptions or closures related to the coronavirus.” 	(ECF
No. 1 ¶ 12.) The United States has declined to intervene, so Ocean State is pursuing
this action alone as a qui tam relator. 	The Court now considers Commissioner
Infante-Green’s Motion to Dismiss (ECF No. 18) this complaint for failure to state a
claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
For the reasons below, Commissioner Infante-Green’s Motion to Dismiss is
GRANTED.
I. 	BACKGROUND
In response to the COVID-19 pandemic, Congress passed the CARES Act,
CAA, and ARPA to provide relief to American families, businesses, and state and local
governments. Together, these packages disbursed at least $581,541,859 in funds to
RIDE. 	(ECF No. 1 ¶ 16.) 	Congress included in these relief statutes provisions
creating conditions on an educational agency’s receipt of funding, including a
requirement that the agency “shall to the greatest extent practicable, continue to pay
its employees and contractors during the period of any disruptions or closures related
to the coronavirus.”
See CARES Act § 18006.
To receive funding through these programs, RIDE and State officials signed
certifications on three separate occasions agreeing to comply with the requirements
set forth in the COVID-19 relief statutes: Commissioner Infante-Green on May 15,
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2020; the Governor’s Deputy Chief of Staff Kevin Gallagher on May 26, 2020; and
RIDE’s Deputy Commissioner Ana Riley on February 9, 2021. (ECF No. 1 at 10-12.)
These certifications acknowledged that failure to comply with all relevant provisions
and requirements of the CARES Act or any other applicable law or regulation “may
result in liability under the False Claims Act.”
Id. The certifications also stated that
an agency receiving funding would “to the greatest extent practicable, continue to
compensate its employees and contractors during the period of any disruptions or
closures related to COVID-19 in compliance with Section 18006 of Division B of the
CARES Act.”
Id.
RIDE had been contracting with Ocean State to provide student transportation
services since 2014, with their most recent contract with the company extending
through June 30, 2020. 	(ECF No. 18 at 7.) 	RIDE stopped paying Ocean State on
March 16, 2020, after Governor Gina Raimondo ordered schools to close as part of the
state’s COVID-19 pandemic lockdown.
	Id. 	A “long series of correspondence and
discussions” followed between the parties about what RIDE owed to Ocean State for
the period of March 16 through June 12, 2020.
	Id. at 9. 	Although at one point an
agreement was apparently reached to pay Ocean State approximately 34 percent of
its fixed costs for the period, this agreement fell through when RIDE added conditions
to its offer of payment.
Id. To date, RIDE has paid no amount to Ocean State for the
period following Rhode Island’s cessation of in-person instruction during the 2019-
2020 school year.
Id. at 10.
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II. 	STANDARD OF REVIEW
On a motion to dismiss under Rule 12(b)(6), courts must evaluate whether the
complaint adequately pleads facts that “state a claim to relief that is plausible on its
face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	In performing this
evaluation, courts “assume the truth of all well-plead[ed] facts and give plaintiff the
benefit of all reasonable inferences therefrom.”
	Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007). But they do not “draw unreasonable inferences
or credit bald assertions [or] empty conclusions.”
	Theriault v. Genesis HealthCare
LLC, 890 F.3d 342, 348 (1st Cir. 2018).
III. 	DISCUSSION
The FCA imposes civil liability on any person who “knowingly presents,”
“causes to be presented,” or conspires to present “a false or fraudulent claim for
payment 	or 	approval” 	to 	the 	United 	States 	government.
	Borzilleri 	v. 	Bayer
Healthcare Pharm., Inc., 24 F.4th 32, 36 (1st Cir. 2022). The FCA includes a scienter
requirement, meaning that a person must have “actual knowledge of the information
[presented to the government]” and either “act[ ] in deliberate ignorance of the truth
or falsity of the information” or “in reckless disregard of the truth or falsity of the
information,” § 3729(b)(1)(A), as well as a materiality requirement, meaning the
information must have “a natural tendency to influence, or be capable of influencing,
the payment or receipt of money or property,” § 3729(b)(4). 	FCA actions are also
subject to the heightened pleading standard for fraud allegations under Rule 9(b),
which 	means 	that 	“a 	party 	must 	state 	with 	particularity 	the 	circumstances
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constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Such particularly requires “that
a 	complaint 	must 	specify 	‘the 	time, 	place, 	and 	content 	of 	an 	alleged 	false
representation.’”
United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 731 (1st Cir.
2007) (quoting
Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir.1996)).
Commissioner 	Infante-Green 	presents 	five 	arguments 	in 	support 	of 	her
motion: (1) the action should be dismissed under the doctrine of sovereign immunity,
because the Complaint is in fact against the State of Rhode Island; (2) defendants are
entitled to qualified immunity, because the CARES Act is a “standardless” statute
incapable of clearly establishing a statutory right that the defendants should
reasonably have known about; (3) the dispute is over such a small proportion of the
overall pandemic relief funding RIDE received that there is no materiality; (4) this is
essentially a contractual dispute that does not meet the FCA’s falsity requirement;
and (5) the defendants did not have the requisite scienter to violate the FCA.
A. Sovereign Immunity
The Commissioner first argues that although Ocean State’s Complaint is
stylized as a suit against the defendants in their individual capacities, its allegations
are in reality against the State of Rhode Island, which is entitled to sovereign
immunity. 	(ECF No. 18 at 12.) 	The First Circuit has held that “the distinction
between official capacity and individual capacity suits is well established. 	That
distinction depends on ‘the capacity in which the state officer is sued, not the capacity
in which the officer inflicts the alleged injury.’”
	Guillemard-Ginorio v. Contreras-
Gomez, 585 F.3d 508, 530 (1st Cir. 2009) (quoting
Hafer v. Melo, 502 U.S. 21, 26
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(1991)). 	Personal 	capacity 	suits 	“seek 	to 	impose 	individual 	liability 	upon 	a
government officer for actions taken under color of state law. … [A] suit against a
state officer in his or her individual capacity for money damages is not a suit against
the state for purposes of Eleventh Amendment immunity.”
Id. at 531 (quoting
New
Orleans Towing Ass’n v. Foster, 248 F.3d 1143 (5th Cir. 2001)).
In contrast to this rule, the Commissioner contends that it is the capacity in
which the officer inflicts the alleged injury that matters. She cites a line of cases from
the Eighth Circuit for the argument that, when an FCA complaint does not allege
with specificity how a state official “acted outside of [their] official duties,” any FCA
claim against that official is really a claim against the state that must be dismissed
under the Eleventh Amendment.
	U.S. ex. rel. Gaudineer & Comito, L.L.P. v. Iowa,
269 F.3d 932, 936-37 (8th Cir. 2001). In this case, where “there is no allegation that
Defendants took any action outside of their official duties, that any Defendant
personally benefited from the allegedly false claims, or that any funds from the
federal government were used for private or improper reasons,” the Complaint should
be interpreted as actually being against the state. (ECF No. 18 at 14.)
Ocean State counters that the holding in
Gaudineer has been rejected by
several other courts. 	For example, the Ninth Circuit held that an FCA complaint
“need not allege that the individual defendants personally profited from such false
submissions” because “nothing in [the FCA] requires the person knowingly making a
false submission to obtain a personal benefit from the wrongful act,” and any holding
otherwise “would be tantamount to a grant of absolute immunity under the FCA to
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state 	officials 	for 	any 	actions 	taken 	in 	the 	course 	of 	their 	governmental
responsibilities.”
Stoner v. Santa Clara Cnty. Off. of Educ., 502 F.3d 1116, 1124 (9th
Cir. 2007).
The First Circuit has not specifically addressed the issue of officials being sued
in their individual versus official capacities in an FCA case. 	However, it has
answered this question in the context of a § 1983 claim. In
Asociación de Subscripción
Conjunta del Seguro de Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 26
(1st Cir. 2007), a Puerto Rican state official was sued in both his official and personal
capacities under § 1983 for withholding insurance premiums in violation of the
takings clause. The First Circuit held that the official was not protected by sovereign
immunity, concluding that “in a suit against an officer for money damages when the
relief would come from the officer’s own pocket, there is no Eleventh Amendment bar
even though the conduct was part of the officer’s official duties.”
Id. (internal citations
omitted). The critical question, then, is whether the relief in a case would come from
an official’s own pockets or the state treasury.1 Here, the claim is for money damages
from the defendants’ own pockets, and so should be considered a suit against the
defendants in their individual capacities.
Commissioner Infante-Green seeks to distinguish
Flores on the grounds that
“[i]n a § 1983 case, the wrongdoer is ‘liable to the party injured,’ which can include a
1 The court also noted that “[s]tate indemnification policies are irrelevant for Eleventh
Amendment analysis and do not prevent federal court relief against individual
officers.”
Flores, 484 F.3d at 26 (quoting Erwin Chemerinsky,
Federal Jurisdiction §
7.5.2, at 423 (4th ed. 2003).
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private party,” whereas in an FCA case “the federal government is the real party in
interest.” 	(ECF No. 23 at 10.) 	But the Court does not agree that this difference
justifies the application of sovereign immunity to defendants being sued in their
individual capacities. “As damages in this case are being sought from and awarded
against [defendants] in their personal capacities only, the Eleventh Amendment
provides them no defense.”
Guillemard-Ginorio, 585 F.3d at 532.
B. Qualified Immunity
The Commissioner next argues that the nature of Ocean State’s claim means
defendants are entitled to qualified immunity. 	“The doctrine of qualified immunity
protects government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal citations omitted). As part of this analysis, courts must determine “whether
the 	right 	at 	issue 	was 	clearly 	established 	at 	the 	time 	of 	defendant’s 	alleged
misconduct.”
	Alston v. Town of Brookline, 997 F.3d 23, 50 (1st Cir. 2021). 	In this
case, Commissioner Infante-Green argues that there was and is no clearly established
law that would make a reasonable public official understand that certifying that
RIDE had paid contractors “to the greatest extent practicable” was an FCA violation.
Although there is little case law interpreting the meaning of “to the greatest extent
practicable” under the CARES Act, she points to one § 1983 case,
Professional Staff
Congress/CUNY v. Rodriguez, 478 F. Supp. 3d 509, 517 (S.D.N.Y. 2020), in which the
court found the CARES ACT to be a “standardless statute” whose “limitation to what
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is to the greatest extent practicable is effectively lacking in any real standards.”
Ocean State asserts that this argument – that qualified immunity can insulate
a state official from suit under the FCA – is not supported by case law. 	While the
First Circuit has not decided this issue, two circuits have, and both cases run contrary
to the Defendant’s position.2	
See United States ex rel. Citynet, LLC v. Gianato, 962
F.3d 154, 160 (4th Cir. 2020) (“[Q]ualified immunity may not be invoked as a defense
to liability under the FCA.”);
see also Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir.
1998) (“[Q]ualified immunity seems particularly ill-suited in this context, given the
goals of the FCA.”).3 In arriving at this conclusion, both courts cited the FCA’s unique
purpose of protecting the federal government from fraud. 	The
Gianato court also
based its decision on the FCA’s requirement that only defendants who have acted
“knowingly” can be held liable under the statute: “[i]n order to have violated the FCA,
a government official would have necessarily had to act in a manner inconsistent with
the type of ‘reasonable but mistaken judgments’ qualified immunity is designed to
shield.”
Gianato, 962 F.3d at 160.
Ocean State also argues that, even if qualified immunity can apply to an FCA
2 Commissioner Infante-Green points to dicta in the Ninth Circuit’s
Stoner decision,
in which the court wrote, “Of course, state employees sued under the FCA may be
entitled to qualified immunity.”
Stoner, 502 F.3d at 1125 n.3. This was a somewhat
parenthetical aside to
Stoner’s holding that sovereign immunity does not shield state
officials from FCA actions, with the court commenting that, by contrast, qualified
immunity might shield them. 	But the court did not undertake an analysis about
whether qualified immunity actually does apply to FCA claims.
3 The Fifth Circuit’s decision in
Samuel dealt with the retaliation provision of the
FCA. But the court’s reasoning applies equally well to the FCA’s qui tam provision.
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claim, the well-plead facts would overcome it, as Ocean State alleges that Infante-
Green did, in fact, know that RIDE was not complying with the CARES Act when she
signed the certification, which included language that should have given defendants
clear notice of the liability they faced.4
Whether or not this allegation is true is a question of fact, and it is relevant
that the single case in which a district court has applied qualified immunity to an
FCA claim,
United States ex rel. Burlbaw v. Orenduff, 400 F. Supp. 2d 1276, 1289
(D.N.M. 2005), was decided on a motion for summary judgment, not a motion to
dismiss. In
Orenduff, the district court found that, based on the summary judgment
record that had been developed, the plaintiffs had “failed to raise an issue of fact
concerning any Defendant’s intent” to knowingly or recklessly provide a false
certification to the government.
Id. Here, no such record has yet been developed. In
asking for a qualified immunity analysis at this early stage, the Commissioner is
inviting the Court to take a completely novel action. Without deciding whether it is
ever appropriate to apply qualified immunity to an FCA claim, the Court finds that
doing so is not proper in this case on a motion to dismiss.
C. Materiality
4 “I acknowledge and agree that the failure to comply with all Assurance and
Certification of this Agreement, all relevant provisions of the CARES Act, or any
other applicable law or regulation may result in liability under the False Claims Act
31 U.S.C. § 3729, et seq.” (ECF No. 20 at 15-16.)
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The Commissioner next argues that the monetary amount that was allegedly
not paid to Ocean State is an infinitesimally small proportion of the $594,050,429
received by RIDE under the CARES Act and so does not meet the FCA’s demanding
materiality standard. (ECF No. 18 at 28-29.) However, many courts have found that
materiality calls for an examination of the federal government’s payment decision
and whether it would have been affected by the defendant’s noncompliance, not by
the amount of the payment.
	See, e.g.,
United States ex rel. Simpson v. Bayer Corp.,
376 F. Supp. 3d 392, 410 (D.N.J. 2019) (“[T]he materiality inquiry does not ask
whether
the cost of a noncompliant item would have affected the Government’s
payment decision; it asks whether
the noncompliance itself would have affected that
decision.”);
Commonwealth ex rel. Martino-Fleming v. S. Bay Mental Health Ctr., 334
F. Supp. 3d 394, 408–09 (D. Mass. 2018) (holding that Massachusetts sufficiently
alleged a state law FCA claim against health care provider, even though false claims
did not increase the reimbursement amount);
U.S. ex rel. Duffy v. Lawrence Mem.
Hosp., No. 14-2256, 2018 WL 4748345, at *8 n.8 (D. Kan. Oct. 2, 2018) (“whether the
U.S. Treasury is ultimately impacted is not relevant to the question of whether an
alleged misrepresentation affected or would likely affect a reimbursement decision”).
The certifications signed by the defendants provided that “failure to comply
with … the CARES Act … may result in liability under the False Claims Act.” (ECF
No. 20 at 23.) While the Supreme Court specified that “the Government’s decision to
expressly identify a provision as a condition of payment is relevant, but not
automatically dispositive,”
Universal Health Services, Inc. v. U.S., ex rel. Escobar,
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579 U.S. 176, 194 (2016), the First Circuit has held that “[m]ateriality is more likely
to 	be 	found 	where 	the 	information 	at 	issue 	goes 	to 	the 	very 	essence 	of 	the
bargain.”
	United States ex rel. Escobar v. Universal Health Servs., Inc., 842 F.3d
103, 110 (1st Cir. 2016) (internal citation omitted). Given that one of the main goals
of the CARES Act – in other words, part of its essence – was to insulate businesses
from the disruptions brought on by the COVID-19 pandemic, it is at least plausible
that the federal government would not have released CARES Act funding to RIDE
had the Commissioner refused to sign the certification or indicated that she would
not comply with the requirements of § 18006.
D. Falsity and Scienter
Along with her immunity claims, Commissioner Infante-Green also argues
that Ocean State fails to show the falsity and scienter required to state a claim under
the FCA.
Several circuit courts have held that an FCA claim must allege a statement or
conduct that “represent[s] an objective falsehood.”
	United States ex rel. Wilson v.
Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008). 	This requirement is
not met by a “run-of-the-mill breach of contract action” in which an FCA relator bases
a fraud claim “on nothing more than his own interpretation of an imprecise
contractual provision.”
	Id. at 378. 	But a circuit split exists over this “objective
falsehood” requirement.
	See United States v. AseraCare, Inc., 938 F.3d 1278, 1298
(11th Cir. 2019) (“a number of opinions from our sister circuits lends support to our
conclusion that the Government must show an objective falsity.”);
cf. States v. Care
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Alternatives, 	952 	F.3d 	89, 	91 	(3d 	Cir. 	2020) 	(rejecting 	“objective-falsehood
requirement for FCA falsity”);
United States ex rel. Polukoff v. St. Mark's Hosp., 895
F.3d 730, 742-743 (10th Cir. 2018) (“the fact that an allegedly false statement
constitutes the speaker’s opinion does not disqualify it from forming the basis of FCA
liability”);
United States ex rel. Winter v. Gardens Regional Hospital & Medical Ctr.,
Inc., 953 F.3d 1108, 1122 (9th Cir. 2020) (refusing “to graft any type of ‘objective
falsity’ requirement onto the FCA.”).
The First Circuit has not yet decided the issue of the whether an objective
falsehood is required to sustain a claim under the FCA. The court did note in
United
States ex rel. Jones v. Brigham & Women’s Hosp., 678 F.3d 72, 87 (1st Cir. 2012) that
it “take[s] a broad view of what may constitute a false or fraudulent statement to
avoid foreclos[ing] FCA liability in situations that Congress intended to fall within
the Act’s scope.” 	But the court also made clear that “[e]xpressions of opinion,
scientific judgments, or statements as to conclusions about which reasonable minds
may differ cannot be false.”
Id. (internal citation omitted).
The Commissioner argues that her certification that RIDE “shall to the
greatest extent practicable, continue to pay its employees and contractors” cannot
constitute 	an 	objective 	falsehood 	because 	she 	had 	an 	objectively 	reasonable
interpretation of the terms of RIDE’s contract with Ocean State that did not require
payment to Ocean State after the cessation of in-school instruction in March 2020.
(ECF No. 18 at 24-26.) While the contract “guaranteed compensation for a minimum
Daily Bus Service Time of four (4.0) hours for each vehicle assigned to a regular
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routing package under this Agreement,” Commissioner Infante-Green argues that its
terms could also support an interpretation of “Daily Bus Service Time” as something
triggered only where transportation service has been provided, meaning she “could
have reasonably concluded that no performance occurred for which Ocean State was
entitled to payment; under the contract or § 18006.”
Id.
The existence of a potentially reasonable alternative interpretation of this
contract is particularly challenging to Ocean State’s FCA claim given the nature of
the statute upon which it is based. 	There is only one case in which a district court
has ruled on what the “to the greatest extent practicable” language in the CARES Act
requires. 	In
Professional Staff Congress/CUNY v. Rodriguez, 478 F. Supp. 3d 509,
514 (S.D.N.Y. 2020), adjunct professors sued a university and its chancellor arguing
that they had violated § 18006 of the CARES Act by declining to renew their faculty
appointments and therefore not continuing to pay them “to the greatest extent
practicable.” But the Court held that § 18006 is a “standardless statute” and that “its
limitation to what is to the greatest extent practicable is effectively lacking in any
real standards.”
Id. at 516-17. This conclusion was based in part on how “the CARES
Act provides no statutory guidance as to how a funding recipient should determine
the ‘practicability’ of retaining its employees,” as well as the fact that “the phrase [is
not] the subject of any meaningful legislative history.”
Id. at 516.
The
Rodriguez opinion is not binding on this court, but its reasoning is
persuasive. 	Even if the Court does not adopt its full determination that § 18006 is
completely 	standardless, 	the 	statute 	confers 	substantial 	discretion 	on 	funding
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recipients to determine the meaning of practicability. This discretion, along with the
Commissioner’s alternative interpretation of its contract terms with Ocean State –
under which Ocean State could reasonably be considered to not be entitled to
payment – together paint a picture that the Commissioner’s certification that it would
pay its contractors “to the greatest extent practicable” was a “statement[] as to [a]
conclusion[] about which reasonable minds may differ.”
Brigham & Women’s Hosp.,
678 F.3d at 87. Such a statement, the First Circuit has made clear, “cannot be false.”
Id.
This conclusion impacts the Court’s scienter analysis, as well. The FCA only
imposes liability on persons who “knowingly” present false claims to the United
States government. 31 U.S.C. § 3729(b). A person acts “knowingly” if they “(1) had
actual knowledge of the information; (2) acts in deliberate ignorance of the truth or
falsity of the information; or (3) acts in reckless disregard of the truth of falsity of the
information.”
Id. Significantly, the First Circuit has directed courts to circumscribe
FCA liability with “strict enforcement of the Act’s … 	scienter requirement[].”
Brigham & Women’s Hosp., 678 F.3d at 87 (quoting
United States v. Sci. Applications
Int’l Corp., 626 F.3d 1257, 1280 (D.C.Cir.2010)).
The Commissioner argues that it is impossible to knowingly perpetrate fraud
on the federal government based on a statutory command that confers as much
discretion as § 18006, and that, in any event, Ocean State has not plead sufficient
facts to plausibly show the Commissioner acted with scienter. 	Ocean State alleges
that the Commissioner “knew that RIDE owed Ocean State … funds, that she knew
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that RIDE had not paid what was owed, that she knew RIDE did not intend to pay
and that she nonetheless falsely certified to the United States that she was complying
and would comply with the CARES Act.” 	(ECF No. 20 at 20.) 	To support these
allegations, Ocean State’s Complaint states that “at the time [the Commissioner]
certified RIDE’s compliance with the statutory conditions to receive ECF funds …
RIDE was not complying [with] this condition,” and that “[the Commissioner knew
that RIDE was not complying with and would not comply with the CARES Act and
CAA’s conditions on ESF funds because RIDE had unilaterally stopped paying Ocean
State owed minimum charges during the 2020 school closures.” 	(ECF No. 1 ¶¶ 56,
81.) But the lack of standards in § 18006 and the existence of a reasonable alternative
interpretation of Ocean State’s contract mean that more facts are necessary to
plausibly show that the Commissioner acted with scienter.
For these reasons, the Court finds that Ocean State has not plead sufficient
facts under Fed. R. Civ. P. 8 to raise a plausible claim that the Commissioner
knowingly presented a false claim to the United States government.
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS Commissioner Infante-Green’s
Motion to Dismiss (ECF No. 18).
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
April 28, 2023
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