Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VERN McKINLEY, ) ) Plaintiff, ) ) v. ) ) FEDERAL HOUSING FINANCE ) AGENCY, ) ) Defendant. ) ______________________________)

Civil Action No. 10-cv-01165 (BJR)

PLAINTIFFS MOTION FOR AWARD OF ATTORNEYS FEES AND OTHER LITIGATION COSTS Plaintiff Vern McKinley, by counsel and pursuant to 5 U.S.C. 552(a)(4)(E) and 28 U.S.C. 1920, respectfully requests that it be awarded $15,852.50 in attorneys fees and other litigation costs in the above-captioned action. As grounds therefor, Plaintiff respectfully refers the Court to the accompanying Plaintiffs Memorandum of Law In Support of Its Motion for Award of Attorneys Fees and Other Litigation Costs. Dated: February 21, 2012 Respectfully submitted, /s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Counsel for Plaintiff

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 2 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VERN McKINLEY, ) ) Plaintiff, ) ) v. ) ) FEDERAL HOUSING FINANCE ) AGENCY, ) ) Defendant. ) ______________________________)

Civil Action No. 10-cv-01165 (BJR)

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR AN AWARD OF ATTORNEYS FEES AND OTHER LITIGATION COSTS Plaintiff Vern McKinley, by counsel and pursuant to 5 U.S.C. 552(a)(4)(E) and 28 U.S.C. 1920, respectfully requests that he be awarded $15,852.50 in attorneys fees and other litigation costs in the above-captioned action. As grounds therefor, McKinley states as follows: I. FACTUAL BACKGROUND. This case involves Plaintiff Vern McKinleys efforts to obtain information concerning the decision of Defendant Federal Housing Finance Agency (Defendant) to place the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) into conservatorship. Specifically, McKinley sent a Freedom of Information Act (FOIA) request to Defendant on May 23, 2010. Complaint at 5 (Docket Entry No. 1). Defendant failed to respond to McKinleys FOIA request within the statutorily allotted time period, and McKinley filed suit on July 12, 2010. Defendant Federal Housing Finance Agencys Memorandum in Support of its Motion for Summary Judgment (Defs Mem.) (Docket Entry No. 9) at 4. Subsequently, Defendant notified McKinley that it had located three records responsive to McKinleys request and that each record was being withheld

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 3 of 13

in its entirety pursuant to Exemption 5. Id. Upon reviewing the declarations and Vaughn Index submitted by Defendant in support of its Motion for Summary Judgment, McKinley challenged Defendants withholding of Document Numbers 2 and 3 in Defendants Vaughn Index and elected not to challenge Defendants withholding of Document Number 1. June 7, 2011 Order (Docket Entry No. 15) at 1. Defendant filed a summary judgment motion in which it claimed that Document Numbers 2 and 3 were being properly withheld under the attorney work product doctrine and the deliberative-process privilege. McKinley opposed Defendants motion and cross-moved for summary judgment. McKinley asserted that Defendant was improperly withholding the two records in their entirety under the attorney work product doctrine or deliberative-process privilege. In a June 7, 2011 Order, this Court ordered an in camera inspection of Document Numbers 2 and 3. Upon completion of this inspection, on August 26, 2011, this Court held that Document Numbers 2 and 3 were being improperly withheld under the attorney work product doctrine and ordered Defendant to disclose to McKinley any portions of these documents that were reasonably segregable from the material therein that is protected by the deliberative-process privilege. August 26, 2011 Order (Docket Entry No. 17) at 4. Subsequently, pursuant to the Courts order, Defendant performed a segregability analysis and released to Plaintiff all reasonably segregable non-privileged information from the two contested documents. September 16, 2011 Joint Status Report (Docket Entry No. 18). II. ARGUMENT. FOIA allows for an award of attorneys fees and other litigation costs to a prevailing plaintiff for two purposes: (1) to encourage Freedom of Information Act suits that benefit the public interest and (2) to serve as compensation for enduring an agencys unreasonable obduracy in refusing to comply with the Freedom of Information Acts requirements. LaSalle

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 4 of 13

Extension Univ. v. Federal Trade Comm'n, 627 F.2d 481, 484 (D.C. Cir. 1980). To obtain an award, the requestor must demonstrate that (1) he has substantially prevailed and is thus eligible for an award; and (2) he is entitled to an award under a balancing of relevant factors. See Oil, Chemical and Atomic Workers Intl Union v. Department of Energy, 288 F.3d 452 (D.C. Cir. 2002); Bricker v. FBI, 54 F. Supp. 2d 1, 5 (D.D.C. 1999); Northwest Coalition for Alternatives to Pesticides v. Browner, 965 F. Supp. 59, 63 (D.D.C. 1997) (citing Weisberg v. DOJ, 848 F.2d 1265, 1268 (D.C. Cir. 1988)). A. McKinley Is Eligible for an Award of Attorneys Fees and Other Litigation Costs.

A FOIA requester has substantially prevailed if he has obtained relief through either: a judicial order or a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial. 5 U.S.C. 552(a)(4)(E)(ii)(II). In the instant matter, McKinley clearly satisfies either standard. There is no doubt that McKinley obtained relief through a judicial order. In its August 26, 2011 Order, this Court ordered that, by no later than September 5, 2011, defendant shall identify and disclose to plaintiff any portion of Document [Numbers] 2 and 3 that is reasonably segregable from the material therein that is protected by the deliberative process. August 26, 2011 Order (Docket Entry No. 17) at 2. Subsequently, pursuant to the Courts order, Defendant released previously-withheld material contained in the two documents. In other words, as ordered by this Court, Defendant performed a segregability analysis and released to Plaintiff all reasonably segregable non-privileged information from the two contested documents. September 16, 2011 Joint Status Report (Docket Entry No. 18). Similarly, it is undisputed that the above-captioned litigation substantially caused the requested records to be released. ACLU v. United States Department of Homeland Security, 3

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 5 of 13

No. 08-1100, 2011 U.S. Dist. LEXIS 104264, at *16 (D.D.C. Sep. 15, 2011) (Walton, J.) (appeal docketed, D.C. Cir. No. 11-5318) (quoting N.Y.C. Apparel F.Z.E. v. U.S. Customs & Border Prot. Bureau, 563 F. Supp. 2d 217, 221 (D.D.C. 2008)). Defendant undisputedly failed to satisfy its statutory obligation to make a determination whether it would produce any responsive records within the time period required by law. 5 U.S.C. 552(a)(6)(A)(i). It was only after McKinley filed suit that Defendant notified McKinley that three responsive records existed and that the records were being withheld in their entirety. Also, as stated above, it was only after the Court ordered Defendant to conduct a segregability analysis and release to McKinley additional material that Defendant produced portions of the responsive records. Thus, McKinley has substantially prevailed as there can be no doubt that litigation substantially caused the requested records to be released in this matter. ACLU, 2011 U.S. Dist. LEXIS 104264 at *16 (quoting N.Y.C. Apparel F.Z.E., 563 F. Supp. 2d at 221). B. McKinley Is Entitled to an Award of Attorneys Fees and Other Litigation Costs.

As stated above, in addition to being eligible for an award of attorneys fees and other litigation costs, a FOIA requester must also be entitled to the award. To determine whether a requester is entitled to an award, a court must consider the following four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiffs interest in the records; and (4) whether the Government had a reasonable basis for withholding requested information. Burka v. U.S. Dept of Health & Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998) (internal citations and quotations omitted). The second and third factors are closely related and often considered together. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995) (quoting Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992)). None of the factors are dispositive. Piper v. U.S. Department of Justice, 4

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 6 of 13

339 F. Supp. 2d 13, 20 (D.D.C. 2004). Rather, the court must balance all four factors. Ralph Hoar & Assocs. v. Natl Hwy Traffic Safety Admin., 985 F. Supp. 1, 9 (D.D.C. 1997). The balancing of these factors in this case clearly supports an award of attorneys fees and other litigation costs for McKinley. 1. The instant matter has added to the fund of information available to the public concerning the governments decision to place Fannie Mae and Freddie Mac into conservatorship.

According to the D.C. Circuit, a FOIA action results in a public benefit if the requesters victory is likely to add to the fund of information that citizens may use in making vital political choices. Cotton, 63 F.3d at 1120 (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978)). In making this inquiry, it is important that the central purpose of FOIA is to assist our citizenry in making the informed choices so vital to the maintenance of a popular form of government. Blue, 570 F.2d at 533. Defendant has estimated that Fannie Mae and Freddie Mac will ultimately need between $220 billion and $311 billion in public funds to address the capital deficiency of the Enterprises.1 To address the advanced stage of Fannie Maes and Freddie Macs capital problems, the two primary options available to the federal government were for Defendant to place Fannie Mae and Freddie Mac into either conservatorship or receivership. Conservatorship is a process designed to restore a weak financial institution to sound financial health while preserving and conserving assets. Receivership entails a liquidation of the institution through the sale of assets and payment of claimants. Henry M. Paulson, Secretary of the Department of the Treasury, initially concluded that the best option for Fannie Mae and Freddie Mac would be to have Defendant place them into Federal Housing Finance Agency, Projections of the Enterprises' Financial Performance, October 2011 (available at http://www.fhfa.gov/webfiles/22737/GSEProjF.pdf). 5
1

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 7 of 13

receivership. This would have allowed for a downsizing of Fannie Mae and Freddie Mac and addressed their long-term position in the market. According to Secretary Paulson, Defendant ultimately placed Fannie Mae and Freddie Mac into conservatorship in September 2008 because conservatorship allowed for a rapidly implemented time out not unlike Chapter 11 bankruptcy, so that Fannie Mae and Freddie Mac could avoid defaulting on their debts.2 In a meeting with the boards of Fannie Mae and Freddie Mac, Ben S. Bernanke, Chairman of the Board of Governors of the Federal Reserve System, described the catastrophe that would occur if we did not take these actions.3 Yet this catastrophe scenario was never detailed publicly. Nor was it revealed why the option of conservatorship was chosen over receivership. Therefore, McKinley sought records from Defendant under FOIA and initiated the instant matter when Defendant failed to respond to his FOIA request within the statutorily prescribed time period. By initiating and litigating the instant matter, McKinley added to the fund of information available to the public about the decision to place Fannie Mae and Freddie Mac into conservatorship. Document Number 2 is a comparison chart that presents the potential policy impacts and practical effects of imposing a consent order or a conservatorship on Fannie Mae and Freddie Mac. August 26, 2011 Order (Docket Entry No. 17) at 2. Besides the general knowledge that the government did in fact conduct an analysis before making this significant decision, the produced portions of Document 2 also shed light on what factors the government analyzed when making its decision. For example, it is of great interest that one of the factors the government weighed when deciding how to prevent a financial catastrophe was public
2

Henry M. Paulson, On the Brink: Inside the Race to Stop the Collapse of the Global Financial System, 162-166 (2010). Id. 6

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 8 of 13

perception. In addition, another portion of the record produced pursuant to the Courts August 26, 2011 Order reveals that the government thought the receivership option would be Labor Intensive. Although the entire record was not produced, it is clear that the produced portions shed light on how the government made one of the most important financial decisions of the last decade. Similarly, Document Number 3 is a memorandum that lays out in detail the various policy, operational, and logistical considerations the government considered in determining whether to impose either a conservatorship or a receivership on Fannie Mae and Freddie Mac. August 26, 2011 Order (Docket Entry No. 17) at 3. The memorandum reveals the governments analysis of the issue approximately three weeks before Fannie Mae and Freddie Mac were placed in conservatorship. Again, although not all of the record was produced, the portions that were produced clearly add to the publics knowledge about the governments handling of a potentially catastrophic financial situation. In addition, as will be addressed below, the produced material has been disseminated to the public and is part of McKinleys general objective to uncover previously unknown information and educate the public concerning the governments handling of the financial crisis of 2008. In sum, the records obtained by McKinley regarding this matter enabled the public to gain access to information concerning the historic federal takeover of Fannie Mae and Freddie Mac. This factor thus weighs heavily in favor of granting an award of attorneys fees and other litigation costs for McKinley. 2. McKinleys interest in the requested records was to obtain and disseminate the records for public consumption.

The second and third factors -- whether a FOIA requester will derive commercial benefit from disclosure and the nature of the requesters interests in the records -- are closely related and

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 9 of 13

typically considered together. Cotton, 63 F.3d at 1120. These factors also weigh heavily in favor of granting an award of attorneys fees and other litigation costs. McKinley is a former employee of the Board of Governors of the Federal Reserve, the Federal Deposit Insurance Corporation, the Resolution Trust Corporation, and the Office of Thrift Supervision. Declaration of Michael Bekesha (Bekesha Decl.) at 2, attached as Exhibit 1. Since 1999, he has served as a consultant, legal advisor and regulatory policy expert on financial sector issues for governments in the United States, China, Nigeria, Indonesia, Ukraine, Kazakhstan, Latvia, the Philippines, Yugoslavia (now Montenegro), Kenya, Eastern Caribbean Currency Union, Belarus, Morocco, Sudan, Libya, Afghanistan, Armenia, Kosovo, and Tajikistan. Id. at 3. In addition, McKinley is a Research Fellow at the Independent Institute and author of the recently-published book Financing Failure: A Century of Bailouts. Id. at 4. He also recently wrote an article entitled Financing Fannie and Freddies Failures, which was published in The Hill. Id. at 5 This month he was also interviewed on MSNBCs Dylan Ratigan Show where he discussed the distinction between Defendant placing Fannie Mae and Freddie Mac in conservatorship as opposed to receivership. Id. at 6. McKinley has worked with Judicial Watch in litigating four FOIA lawsuits as well as making numerous other FOIA requests for information about the financial crisis of 2008. Id. at 7. All of the records received by McKinley under FOIA have been made available to the public at http://www.scribd.com/vernmckinley. Id. at 8. In sum, McKinleys interest in the records obtained through this litigation is academic, not commercial. McKinleys interest is no different than the plaintiffs interest in Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C. Cir. 2008). In Davy, a private plaintiff utilized the requested records to conduct research for a book that was subsequently published. In that matter,

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 10 of 13

the Court held that such a use of records was not purely commercial in nature and, instead, that the plaintiff has engaged in activities [that] often aim to ferret out and make public worthwhile, previously unknown government information precisely the activity that FOIAs fees provision seeks to promote. Id. at 1160. Similarly, McKinleys objective in this litigation was to obtain

information under FOIA about what the government was up to with respect to placing Fannie Mae and Freddie Mac into conservatorship and to share such information with the public as part of his scholarship or news gathering role. Id. at 1162. Accordingly, McKinleys substantially non-commercial motive and his interest in obtaining and disseminating the records at issue weigh heavily in favor of an award of attorneys fees and other litigation costs. 3. The Court found that neither document was prepared in anticipation of litigation.

Defendant did not have a reasonable basis for withholding the released information at issue. The Court found that neither document was prepared in anticipation of litigation within the meaning of Rule 26(b)(3)(A). August 26, 2011 Order (Docket Entry No. 17) at 2. In addition, the Court had previously found that Defendant had undertaken no segregability analysis because it believe[d] that the documents [were] protected by the work-product doctrine, which does not require the segregation of disclosable material. June 7, 2011 Order (Docket Entry No. 15) at 5. Therefore, the Court ordered Defendant to conduct a segregability analysis and produce all non-exempt material. The failure to conduct a segregability analysis has been the basis for an award of attorneys fees in the past. Williams v. F.B.I., 17 F. Supp. 2d 6, 9 (D.D.C. 1997). In addition, regardless of whether Defendant may have had a reasonable basis in law for withholding the material, this factor alone does not outweigh the public benefit and noncommercial nature of McKinleys interest in the information. Tax Analysts, 965 F.2d at 10969

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 11 of 13

1097; see also ACLU, 2011 U.S. Dist. LEXIS 104264, at *25-26 ([T]he reasonable basis in law factor is not dispositive, and can be outweighed by the public benefit and commercial benefit to the plaintiff factors.). As demonstrated above, McKinleys litigation of his FOIA request and Defendants production of portions of the responsive records led to additional information entering the public forum concerning this issue. Because of the great public interest in the issue and McKinleys entirely non-commercial interest in obtaining and disseminating the responsive records, an award of attorneys fees and other litigation expenses is amply justified. C. The Requested Award of Attorneys Fees Is Reasonable.

Fee awards are calculated by multiplying the number of hours reasonably expended by a reasonable hourly rate, resulting in a lodestar amount. See Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980). McKinley is represented in this matter by attorneys from the public interest organization Judicial Watch, Inc. As public interest lawyers, Judicial Watchs attorneys do not have customary billing rates, as most private practice attorneys do. Nevertheless, public interest attorneys may be awarded reasonable attorneys fees calculated according to the prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. 886, 896 (1984) (fees awarded based on prevailing rate whether plaintiff is represented by private or nonprofit counsel); Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995); Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir. 1988). It is well established that awards of attorneys fees may be calculated based on the Laffey Matrix because, in the absence of a specific sub-market analysis of attorneys fees, use of the broad Laffey Matrix may be by default the most accurate evidence of a reasonable hourly rate.

10

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 12 of 13

Covington, 57 F.3d at 1114.4 A copy of the Laffey Matrix is attached as Exhibit B to Bekesha Decl. McKinley requests that its fee award be calculated under the Laffey Matrix. A verified itemization of attorney/paralegal time expended by Judicial Watch in this matter is attached as Exhibit C to Bekesha Decl. Unless otherwise indicated, the itemization was generated from the contemporaneously-kept time records of the Judicial Watch attorneys and/or paralegals who worked on the case: Paul J. Orfanedes, Michael Bekesha, David F. Rothstein, and Cristina Rotaru. The rates applied to the time recorded in Exhibit C are adopted from the Laffey Matrix. Mr. Orfanedes is an attorney who graduated from The American Universitys Washington College of Law in 1990. He has been practicing law continuously since that time and is an experienced litigator and has been admitted to practice before numerous state and federal courts, including the Bar of this Court. Mr. Bekesha is an attorney who graduated from the University of Missouri-Columbia, School of Law in 2009. He has been practicing law continuously since August 2009 and is admitted to the Massachusetts Bar as well as to the Bar of this Court. Mr. Rothstein is a senior litigation assistant/paralegal who graduated from The Catholic University of Americas Columbus School of Law in 1994. He has been working as a paralegal at Judicial Watch since 2003.

This matrix, commonly referred to as the Laffey Matrix or the United States Attorneys Office Matrix, is based on hourly rates allowed by the District Court in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983). Use of an updated Laffey Matrix was implicitly endorsed by the U.S. Court of Appeals for the District of Columbia Circuit in Save Our Cumberland Mountains, 857 F.2d at 1525. The Court subsequently declared that parties may rely on the updated Laffey Matrix prepared by the United States Attorneys Office as evidence of prevailing market rates for litigation counsel in the Washington, D.C. area. See also Covington, 57 F.3d at 1105. 11

Case 1:10-cv-01165-BJR Document 24

Filed 02/21/12 Page 13 of 13

Ms. Rotaru is a litigation assistant/paralegal who holds a BA and a Masters degree in English from the University of Bucharest, Romania and has completed coursework toward a PhD in English at the University of Maryland. She has been working as a paralegal at Judicial Watch since 2002. D. McKinley Is Entitled to Reimbursement for His Other Litigation Costs.

McKinley has incurred other litigation costs of $350.00, which consists of the $350.00 filing fee to initiate this action. See Exhibit C attached to Bekesha Decl. As provided under FOIA and 28 U.S.C. 1920, these expenses should be reimbursed to McKinley. III. CONCLUSION. For the foregoing reasons, McKinley respectfully requests that he be awarded $15,502.50 in attorneys fees and $350.00 in litigation costs pursuant to 5 U.S.C. 552(a)(4)(E) and 28 U.S.C. 1920 for a total award of $15,852.50. Dated: February 22, 2012 Respectfully submitted, /s/ Paul J. Orfanedes Paul J. Orfanedes (D.C. Bar No. 429716) /s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, DC 20024 (202) 646-5172 Counsel for Plaintiff

12

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 1 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 2 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 3 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 4 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 5 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 6 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 7 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 8 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 9 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 10 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 11 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 12 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 13 of 14

Case 1:10-cv-01165-BJR Document 24-1

Filed 02/21/12 Page 14 of 14

Case 1:10-cv-01165-BJR Document 24-2

Filed 02/21/12 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VERN McKINLEY, ) ) Plaintiff, ) ) v. ) ) FEDERAL HOUSING FINANCE ) AGENCY, ) ) Defendant. ) ______________________________)

Civil Action No. 10-cv-01165 (BJR)

[PROPOSED] ORDER Upon consideration of Plaintiff=s Motion for An Award of Attorneys Fees and Other Litigation Costs, any opposition thereto, and the entire record herein, it is hereby ORDERED that: 1. Plaintiff=s Motion for an award of $15,852.50 in attorneys fees and other litigation costs is GRANTED. SO ORDERED.

DATE:________________

_____________________ Barbara J. Rothstein United States District Judge