                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_____________________________________________
                                             )
                                             )
MORTGAGE BANKERS                             )
ASSOCIATION,                                 )
                                             )
                   Plaintiff,                )
                                             )
       v.                                    ) Civil Action No. 11-0073 (RBW)
                                             )
                                             )
HILDA SOLIS, Secretary of Labor;             )
NANCY LEPPINK,                               )
Acting Wage and Hour Administrator; and      )
THE UNITED STATES DEPARTMENT OF LABOR, )
                                             )
                   Defendants.               )
                                             )
_____________________________________________)


                                 MEMORANDUM OPINION

       The plaintiff, the Mortgage Bankers Association (“Association”), seeks declaratory and

injunctive relief in this civil lawsuit brought against the defendants, Hilda Solis, in her official

capacity as Secretary of the United States Department of Labor (“DOL”), Nancy Leppink, in her

official capacity as Deputy Administrator of the Wage and Hour Division of the DOL, and the

DOL itself, under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (2006). Complaint

for Declaratory and Injunctive Relief (“Compl.”) ¶ 1. Specifically, the plaintiff seeks judicial

review of the defendants’ issuance of DOL Administrative Interpretation 2010-1 (“2010 AI”),

which conflicts with a prior position taken by the DOL. Id. ¶¶ 2, 26-27. Currently before the

Court is the Association’s Motion for Summary Judgment and the DOL’s Cross Motion to

Dismiss or, in the Alternative, for Summary Judgment. Upon consideration of the complaint, the
parties’ cross-motions, all memoranda of law and the exhibits submitted with the motions, and

the administrative record, 1 the Court concludes that it must grant in part and deny in part the

DOL’s cross-motion and deny the Association’s motion for summary judgment.

                                           I.       BACKGROUND

A.      Statutory and Regulatory Framework

        This case concerns the Fair Labor Standards Act (“FLSA” or “Act”), 29 U.S.C. §§ 201-

219 (2006), and the regulations promulgated by the DOL to implement the Act. See Defendants’

Cross Motion to Dismiss or, in the Alternative, for Summary Judgment (“Defs.’ Mot.”) at 1.

Enacted by Congress in 1938, Compl. ¶ 14, the FLSA generally requires that covered employers

pay overtime wages to their employees who work more than 40 hours per week, unless they are

exempted by the Act from this requirement. 29 U.S.C. § 207(a)(1). Section 213(a)(1) of the

FLSA provides for such an exemption, stating that “any employee employed in a bona fide

executive, administrative, or professional capacity[,] . . . or in the capacity of outside salesman

(as such terms are defined and delimited from time to time by regulations of the Secretary[,] . .

.)” is exempt from the “[m]inimum wage and maximum hour requirements” otherwise required

by the Act. 29 U.S.C. § 213(a)(1).

        The Wage and Hour Division of the DOL (“Wage and Hour Division”) is responsible for

“administering and enforcing the FLSA, and it periodically issues regulations that define the

scope of the FLSA’s exemptions and interpretations of those regulations.” Defs.’ Mot. at 4.


1
  In addition to the documents already identified, the Court considered the following submissions in reaching its
decision: (1) the Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment
(“Pl.’s Mem.”), (2) the Defendants’ Cross-Motion to Dismiss or, in the Alternative, for Summary Judgment (“Defs.’
Mot.”), (3) the Plaintiff’s Reply in Support of its Motion for Summary Judgment and Opposition to Defendants’
Motion to Dismiss or in the Alternative for Summary Judgment (“Pl.’s Reply”), and (4) the Defendants’ Reply to
Plaintiff’s Opposition to Defendants’ Cross Motion to Dismiss or, in the Alternative, for Summary Judgment
(“Defs.’ Reply”).



                                                       2
After the passage of the FLSA, the Wage and Hour Division “promulgated regulations defining

and delimiting the FLSA’s exemptions from overtime pay requirements.” Compl. ¶ 14. Those

regulations were most recently amended on August 23, 2004.           See Administrative Record

(“A.R.”) at 8-78 (Defining and Delimiting the Exemptions for Executive, Administrative,

Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22122-191 (Apr. 23, 2004)

(codified at 29 C.F.R. § 541)).     As revised, the regulations state that the administrative

exemption of section 213(a)(1) of the FLSA applies to an employee:

       (1) Compensated on a salary or fee basis at a rate of not less than $455 per week .
       ..;
       (2) Whose primary duty is the performance of office or non-manual work directly
       related to the management or general business operations of the employer or the
       employer’s customers; and
       (3) Whose primary duty includes the exercise of discretion and independent
       judgment with respect to matters of significance.

29 C.F.R. § 541.200(a). The 2004 regulations were accompanied by a preamble “Summary,”



whose duties relate to the administrative as distinguished from the production operations of a
which explained that the administrative “exemption is intended to be limited to those employees



business.” 69 Fed. Reg. 22122, 22141 (internal quotation marks omitted). The 2004 regulations

also provide examples that illustrate how the administrative duties exemption can be applied to

employees in various occupations, including the following example regarding the financial

services industry:

       Employees in the financial services industry generally meet the duties
       requirements for the administrative exemption if their duties include work such as
       collecting and analyzing information regarding the customer’s income, assets,
       investments or debts; determining which financial products best meet the
       customer’s needs and financial circumstances; advising the customer regarding
       the advantages and disadvantages of different financial products; and marketing,
       servicing or promoting the employer’s financial products. However, an employee
       whose primary duty is selling financial products does not qualify for the
       administrative exemption.



                                               3
29 C.F.R. § 541.203(b) (entitled “Administrative exemption examples”).

B.     Factual and Procedural Background

       1.      Pre-2004 Interpretation of the Administrative Exemption

       The following facts are not in dispute and are taken from either the Association’s

complaint or the administrative record filed in this case.

       The plaintiff is a national trade association that represents the real estate finance industry.

Compl. ¶ 7. The Association “has over 2,200 member companies, including all elements of real

estate finance: mortgage companies, mortgage brokers, commercial banks, thrifts, life insurance

companies, and others in the mortgage lending field.” Id. These companies employ over

280,000 individuals throughout the United States. Id. The Association’s primary goals are “to

ensure the continued strength of the nation’s residential and commercial real estate market, to

expand home ownership and extend access to affordable housing to all Americans.” Id.

       From as early as 1964, and until March 24, 2010, the DOL announced its interpretation of

the FLSA through the issuance of “[o]pinion [l]etters.” Id. ¶ 15. These opinion letters were

written in response to inquiries from private parties seeking guidance about the application of the

FLSA to their business activities. Id. Access to the opinion letters was available through several

avenues, including, in recent years, electronic legal research databases and the DOL’s own

website. See id. And as the plaintiff correctly points out, the District of Columbia Circuit has

held that “DOL Opinion Letters . . . constitute final agency action subject to judicial review.” Id.

¶ 16 (citing Nat’l Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 701-02 (D.C.

Cir. 1971) (holding that although the opinion letters lack formality, they are intended as a

“deliberative determination of the agency’s position” and thus are subject to judicial review)).




                                                 4
         The administrative record in this case contains two opinion letters issued by the DOL

prior to the 2004 amendment of its regulations. The first, dated July 23, 1997, discussed whether

a wholesale salesman is exempt from the FLSA’s overtime requirements. A.R. at 1-3 (Opinion

Letter, 1997 WL 970727 (DOL WAGE-HOUR)). This opinion letter concluded that “[t]he

decisions of wholesale salesmen typically do not involve matters of policy or significant

importance, but are limited to routine day-to-day operational matters.” Id. at 2-3. While the

Wage and Hour Division did not come to an ultimate conclusion on the exemption question, the

opinion letter suggested that wholesale salesmen are not covered by the administrative

exemption.2 Id. The second pre-2004 opinion letter found in the administrative record, dated

May 17, 1999, determined that “loan officers are engaged in carrying out the employer’s day-to-

day activities rather than in determining the overall course and policies of the business” and were

therefore non-exempt employees entitled to overtime. See id. at 5 (Opinion Letter, 1999 WL

1002401 (DOL WAGE-HOUR) (“1999 Opinion Letter”)).

         Effective August 23, 2004, the DOL amended its regulations interpreting the wage and

hour requirements set forth by the FLSA.                  Compl. ¶ 21.         As noted earlier, the amended

regulations, as they pertain to the financial service industry, provide:

         Employees in the financial services industry generally meet the duties
         requirements for the administrative exemption if their duties include work such as
         collecting and analyzing information regarding the customer’s income, assets,
         investments or debts; determining which financial products best meet the
         customer’s needs and financial circumstances; advising the customer regarding
         the advantages and disadvantages of different financial products; and marketing,
         servicing or promoting the employer’s financial products. However, an employee


2
 If the party does not provide the DOL with sufficient facts regarding the nature of their inquiry, the DOL will not
provide an ultimate conclusion; rather, it will state what set of facts would need to exist in order for the employee to
be exempt. See generally Defs.’ Mot. at 11-12 (citing A.R. at 87-93 (Opinion Letter FLSA2006-31 (“2006 Opinion
Letter”))) (providing an opinion that an employee would be exempt if the assumptions provided by the requestor and
other relevant facts are true).


                                                           5
        whose primary duty is selling financial products does not qualify for the
        administrative exemption.

Id. (citing 29 C.F.R. § 541.203(b)). And as already noted, the amended regulations included a

preamble, id. ¶ 22, which makes it clear that “many financial services employees qualify as

exempt administrative employees, even if they are involved in some selling to consumers.” 69

Fed. Reg. at 22146.

        2.      The 2006 Opinion Letter

        On September 8, 2006, the DOL issued an opinion letter to the Association (“2006

Opinion Letter”), see A.R. at 87-93 (Opinion Letter FLSA2006-31 (“2006 Opinion Letter”)), at

the Association’s request. Defs.’ Mot. at 11 n.6. 3 In requesting the letter, the Association asked

the DOL to assume that the mortgage loan officers who were the subject of the letter spent less

than fifty percent of their working time on “customer-specific persuasive sales activity.” Id. at

11-12 (internal quotation marks and citation omitted). The 2006 Opinion Letter began by

reminding the Association that an employee’s exempt status is “determined by analyzing each

particular employee’s actual job duties and compensation under the applicable regulations.”

A.R. at 87 (2006 Opinion Letter).

        The Association also asked whether the DOL’s analysis of the administrative exemption

was altered by the 2004 regulations. Id. at 88-89. In response, the DOL noted that “[b]ecause

the criteria in the duties test for the administrative exemption in the 2004 revised final

regulations are substantially the same as under the prior rule, the outcome of this opinion would

be essentially identical under either version of the regulations.” Id. at 89 (citation omitted).




3
 Generally, the DOL does not release the name of the requestor for an opinion letter. Defs.’ Mot.. at 11 n.6.
However, the Association has acknowledged that it requested the 2006 opinion letter. Id.


                                                     6
       The 2006 Opinion Letter reinforced that the 2004 revised regulations made the

administrative exception applicable to employees when their employment satisfied the following

three components:

       (1) Compensated on a salary or fee basis at a rate of not less than $455 per week .
       . ., exclusive of board, lodging or other facilities;
       (2) Whose primary duty is the performance of office or non-manual work directly
       related to the management or general business operations of the employer or the
       employer's customers; and
       (3) Whose primary duty includes the exercise of discretion and independent
       judgment with respect to matters of significance.

Id. (citation omitted). With regard to the second prong of this test, the letter defined “[w]ork that

is ‘directly related to the management or general business operations’ of the employer . . . as

‘work directly related to assisting with the running or servicing of the business, as distinguished,

for example, from working on a manufacturing production line or selling a product in a retail or

service establishment.’” Id. (citation omitted). As to the third component of the test, the term

“primary duty” is defined in the letter as “the principal, main, major or most important duty that

the employee performs.” Id. (quoting 29 C.F.R. § 541.700(a)). The letter explained that the

amount of time an employee spends performing exempt work is a factor to consider in assessing

the applicability of the exemption, but time alone “is not the sole test.” Id. (quoting 29 C.F.R. §

541.700(b)).

       The 2006 Opinion Letter further noted that although employees whose primary duty

involves sales cannot qualify for the administrative exemption, many financial services

employees could and had been found to fall under this exemption. Id. at 90 (citing 29 C.F.R. §

541.700(b)). Accordingly, the DOL concluded that the loan officers who were the subject of the

2006 Opinion Letter

       ha[d] a primary duty other than sales, as their work include[d] collecting and
       analyzing a customer's financial information, advising the customer about the

                                                 7
       risks and benefits of various mortgage loan alternatives in light of their individual
       financial circumstances, and advising the customer about avenues to obtain a
       more advantageous loan program.

Id. at 90-91. The letter concluded that “the use of software programs or tools to assess risk and

to narrow the scope of products available to the customer does not necessarily disqualify the

employees from the administrative exemption for lack of discretion and independent judgment.”

Id. at 91. Finally, the letter noted that its “opinion [was] based exclusively on the facts and

circumstances described in [the Association’s] request and is given based on [the Association’s]

representation, express or implied, that [the Association] ha[d] provided a full and fair

description of all the facts and circumstances that would be pertinent to [the DOL’s]

consideration of the question presented.” Id. at 93.

       According to the Association, relying on the 2006 Opinion Letter, many members of the

financial services industry, including many of the Association’s members, classified mortgage

loan officers as exempt employees. Compl. ¶ 24. Thus, mortgage loan officers were not

compensated with overtime pay. Id. ¶ 25. Rather, the members of the Association ensured that

their mortgage loan officers were well compensated through other means, like competitive

salaries, bonuses, and commissions. Id.

       3.      The 2010 Administrative Interpretation

       On March 24, 2010, the DOL, “sua sponte,” issued an Administrative Interpretation, the

2010 AI, expressly withdrawing the 2006 Opinion Letter. Id. ¶ 26. Nancy Leppink, Acting

Administrator of the Wage and Hour Division, issued the 2010 AI. See A.R. at 102 (U.S.

Department    of   Labor,   Administrator’s    Interpretation   No.   2010-01    (“Administrator’s

Interpretation No. 2010-01”)).     The 2010 AI focuses on “[w]hether the primary duty of

employees who perform the typical job duties of a mortgage loan officer is office or non-manual



                                                 8
work directly related to the management or general business operations of their employer or their

employer’s customers.” Id. at 103. The 2010 AI expressed that to qualify for the exemption, an

employee’s “[w]ork [must be] directly related to management or general business operations of

an employer[, which] includes work in functional areas such as accounting, budgeting, quality

control, purchasing, advertising, research, human resources, labor relations, and similar areas.”

Id. (citation omitted). In essence, the 2010 AI states that the administrative exemption was

designed for “employees whose work involves servicing the business itself[.]” Id. at 104.

       The 2010 AI relies on a District of Minnesota decision, Casas v. Conseco Finance Corp.,

No. Civ.00-1512, 2002 WL 507059 (D. Minn. March 31, 2002) in addition to several other

cases, as support for its position that mortgage loan officers are non-exempt employees. Id. at

105. In Casas, loan originators asserted they were entitled to overtime compensation from the

defendants under the FLSA, requiring the court to decide whether the plaintiffs were exempt

from FLSA overtime pay provisions. The court found that because “Conseco’s primary business

purpose [was] to design, create and sell home lending products,” the mortgage loan officers’

primary duty was to sell those lending products on a day-to-day basis, not “‘the running of [the]

business [itself]’ or determining its overall course or policies.” Casas, 2002 WL 507059, at *9

(citation omitted) (alterations in original). Relying on the ruling in Casas, the 2010 AI reasons

that “because Conseco’s loan officers’ duties were ‘selling loans directly to individual

customers, one loan at a time,’” the administrative exemption did not apply to them. A.R. at 105

(Administrator’s Interpretation No. 2010-01) (internal citation omitted). The 2010 AI further

notes that the 2004 amended regulations examined the difference between mortgage loan officers

who spend the majority of their time selling mortgage products to consumers, like the Casas

plaintiffs, as compared to those who “promot[e] the employer’s financial products generally,



                                               9
decid[e] on an advertising budget and techniques, run[] an office, hir[e] staff and set[] their pay,

service[] existing customers . . . , and advis[e] customers.” Id. at 105 (citing 69 Fed. Reg. at

22145-46). The 2010 AI concluded that in order for mortgage loan officers to be properly

classified as exempt employees, their primary duties must be administrative in nature. Id. at 105.

       Relying on the facts that a significant portion of mortgage loan officers’ compensation is

composed of commissions from sales, that their job performance is evaluated based on their sales

volume, and that much of the non-sales work performed by the officers is completed in

furtherance of their sales duties, the 2010 AI concluded “that a mortgage loan officer’s primary

duty is making sales.” Id. at 106-07. And because their primary duty is making sales, the 2010

AI further concludes that “mortgage loan officers perform the production[, not the

administrative,] work of their employers.” Id. at 107.

       After concluding that the work of mortgage loan officers is not related to the general

business operation of their employers, the 2010 AI considered another factor that could provide

the basis for finding that mortgage loan officers are subject to the administrative exemption. Id.

at 108. The AI states that “[t]he administrative exemption can also apply if the employee’s

primary duty is directly related to the management or general business operations of the

employer’s customers.” Id. In making this assessment, the 2010 AI notes that “it is necessary to

focus on the identity of the customer.” Id. The 2010 AI finds that “work for an employer’s

customers does not qualify for the administrative exemption where the customers are individuals

seeking advice for their personal needs, such as people seeking mortgages for their homes.” Id.

However, it recognizes that a mortgage loan officer “might qualify under the administrative

exemption” if the customer that the officer is working with “is a business seeking advice about,

for example, a mortgage to purchase land for a new manufacturing plant, to buy a building for



                                                10
office space, or to acquire a warehouse for storage of finished goods.” Id. Nevertheless, the

2010 AI concludes that the typical mortgage loan officers’ “primary duty is making sales for the

employer [to homeowners], and because homeowners do not have management or general

business operations, a typical mortgage loan officer’s primary duty is not related to the

management or general business operations of the employer's customers.” Id. at 109.

        Finally, the 2010 AI took exception with the 2006 Opinion Letter’s apparent assumption

“that the example provided in 29 C.F.R. § 541.203(b) creates an alternative standard for the

administrative exemption for employees in the financial services industry.” Id. Rather, the 2010

AI states that 29 C.F.R. § 541.203(b) merely illustrates an example of an employee who might

otherwise qualify for the exemption based on “the requirements set forth in 29 C.F.R. §

541.200.” Id. Thus, the 2010 AI clarifies that “the administrative exemption is only applicable

to employees that meet the requirements set forth in 29 C.F.R. § 541.200.” Id. In providing this

clarification, the 2010 AI states, “[t]he fact example at 29 C.F.R. § 541.203(b) is not an

alternative test, and its guidance cannot result in it ‘swallowing’ the requirements of 29 C.F.R. §

541.200.” 4 Id.

        In summation, the DOL through the issuance of the 2010 AI explicitly withdrew the 2006

Opinion Letter “[b]ecause of its misleading assumption and selective and narrow analysis[.]” Id.

Before taking this action, the DOL did not utilize the APA’s notice and comment process.

Compl. ¶¶ 32-33.

        Following the issuance of the 2010 AI, the Association filed its Complaint in this case on

January 12, 2011, asserting that the DOL violated the APA by issuing the 2010 AI. Id. ¶¶ 36-52.

4
 The 2010 AI also “expressly withdrew . . . 2001 Opinion Letter.” Pl.’s Mem. at 13; Defs.’ Mot. at 14 (“[T]he Wage
and Hour Division withdrew the 2001 Opinion Letter as inconsistent with the analysis in the 2010 AI, inasmuch as it
had erroneously concluded that mortgage loan officers performed work that was directly related to the management
or general business operations of the employer or the employer’s customers.”).


                                                        11
First, the Association argues that “[o]nce an agency gives its regulation an interpretation, it can

only change that interpretation as it would formally modify the regulation itself: through the

process of notice and comment rulemaking.” Id. ¶ 36 (citing Paralyzed Veterans of Am. v. D.C.

Arena, 117 F.3d 579, 586 (D.C. Cir. 1997)). Second, the Association argues that “[b]ecause the

AI conflicts with existing DOL regulations, and because those regulations have been afforded the

force of law by courts, DOL’s issuance of the 2010 AI is arbitrary, capricious, an abuse of

discretion, and otherwise not in accordance with law.” Id. ¶ 50. The Association seeks to have

the 2010 AI “[v]acat[ed] and set aside” and the defendants “[e]njoin[ed] and restrain[ed] . . .

from enforcing, applying, or implementing . . . the AI.” Id. at 12 (Prayer for Relief). 5

         The Association filed its Motion for Summary Judgment simultaneously with the

Complaint. In response, the DOL has filed a Cross Motion to Dismiss, or, in the Alternative,

Motion for Summary Judgment. 6

                                       II.      STANDARD OF REVIEW

       The DOL has moved for dismissal under Federal Rule of Civil Procedure Rule 12(b)(6),

and alternatively moves for summary judgment under Rule 56. Rule 12(d) provides that “[i]f, on

a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded

by the court, the motion must be treated as one for summary judgment under Rule 56. [And if

the motion is considered under Rule 56, a]ll parties must be given a reasonable opportunity to

present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, because

both parties have presented materials outside the pleadings (namely, the administrative record)

5
  The Association also seeks an award of its litigation costs and attorney’s fees. These requests are not addressed in
this opinion.
6
  In resolving these motions, the Court also considered the memorandum of law submitted on behalf of the three
intervenors, Ryan Henry, Beverly Buck, and Jerome Nichols.



                                                          12
for the Court to consider in adjudicating their motions, the Court deems it appropriate to treat

both submissions as motions for summary judgment. See Marshall Cnty. Health Care. Auth. v.

Shalala, 988 F.2d 1221, 1226 & n.5 (D.C. Cir. 1993) (noting that a district court considering a

Rule 12(b)(6) motion “can consult the [administrative] record to answer the legal question[s]

before the court,” but that “[i]t is probably the better practice for a district court always to

convert to summary judgment”).

       “Summary judgment is the proper mechanism for deciding, as a matter of law, whether

an agency action is supported by the administrative record and consistent with the APA standard

of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010)

(citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)); see also

Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977). However, due to the limited role

of a court in reviewing the administrative record, the typical summary judgment standards set

forth in Rule 56(c) are not applicable. Stuttering, 498 F. Supp. 2d at 207 (citation omitted).

Rather, “[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a

decision that is supported by the administrative record, whereas ‘the function of the district court

is to determine whether or not as a matter of law the evidence in the administrative record

permitted the agency to make the decision it did.’” Id. (quoting Occidental Eng'g Co. v. INS, 753

F.2d 766, 769-70 (9th Cir. 1985)).

       A reviewing court will “hold unlawful and set aside agency action, findings, and

conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with the law.” Ludlow v. Mabus, 793 F. Supp. 2d 352, 354 (D.D.C. 2011) (quoting 5

U.S.C. § 706(2)(A) (2006)). In Motor Vehicle Manufacturers Ass’n of U.S. v. State Farm

Mutual Automobile Insurance Co., the Supreme Court explained the “arbitrary and capricious”



                                                13
review by noting that “an agency rule would be arbitrary and capricious if the agency has relied

on factors which Congress has not intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” 463 U.S. 29, 43 (1983). However, the “standard of review is a

narrow one.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). “The

court is not empowered to substitute its judgment for that of the agency.” Id. “[T]he party

challenging an agency’s action as arbitrary and capricious bears the burden of proof,” San Luis

Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26, 37 (D.C. Cir.

1986), and the APA directs a reviewing court to “review the whole record or those parts of it

cited by a party” in making this assessment, 5 U.S.C. § 706.

                                                  III.     ANALYSIS

         The plaintiff seeks relief based on two distinct theories. First, relying on Paralyzed

Veterans, 117 F.3d at 586, the plaintiff argues that once an agency issues an authoritative

interpretation of its own regulation, it must utilize the notice and comment process if it desires to

modify that interpretation. Compl. ¶ 36. Second, the plaintiff argues that the 2010 AI does not

comport with the 2004 regulations and is therefore “arbitrary, capricious, an abused of discretion,

and otherwise not in accordance with law.” Compl. ¶ 50. The Court will analyze each argument

in turn. 7


7
  The Court notes that the plaintiff contends, and, in fact, takes the position that the 2010 AI is an “interpretation of
[the Agency’s] own regulation[], as it was signed by the Administrator of the Wage and Hour Division, published on
DOL’s website, and held out to employees as guidance for complying with the FLSA.” Pls.’ Mem. at 1. The
defendants do not take exception with this position, indeed, they endorse it. Specifically the defendants state, “the
2010 interpretation corrected a short-lived 2006 issuance,” Defs.’ Mem. at 1 (emphasis added), and further concedes
that it cannot be construed as a legislative rule, see id. at 14-16, 16 n.9 (stating that the 2010 AI is an interpretive
rule as opposed to substantive rule, and therefore, notice and comment is not necessary). The Court agrees that the
2010 AI is an interpretive rule and will accordingly conduct its analysis from that perspective.


                                                          14
A.     The Paralyzed Veterans and Alaska Professional Hunters Cases

       It is well established that there is “no barrier to an agency altering its initial interpretation

to adopt another reasonable interpretation—even one that represents a new policy response

generated by a different administration.” Paralyzed Veterans, 117 F.3d at 586 (citing Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984)). However, the District

of Columbia Circuit has held that “[o]nce an agency gives its regulation an interpretation, it can

only change that interpretation as it would formally modify the regulation itself: through the

process of notice and comment rulemaking.” Id. at 586; Transp. Workers Union of Am. v.

Transp. Sec. Admin., 492 F.3d 471, 475 (D.C. Cir. 2007) (“[A]n agency cannot significantly

change its position, cannot flip-flop, even between two interpretive rules, without prior notice

and comment.”).

       The District of Columbia Circuit had the opportunity to reexamine its holding in

Paralyzed Veterans in Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030, 1033-34 (D.C.

Cir. 1999). Alaska Professional Hunters concerned an interpretation by the Federal Aviation

Administration (“FAA”) that several provisions of its regulations that “applied to (among others)

‘commercial operator[s]’” did not “govern guide pilots whose flights were incidental to their

guiding business and were not billed separately.” Id. at 1031. The FAA’s position was based on

its reading of the Civil Aeronautics Board’s decision in Administrator v. Marshall, 39 C.A.B.

948 (1963).       Id.   “Although the [agency] never set forth its interpretation of [the several

regulations at issue] in a written statement,” the parties “agree[d] that [the] FAA personnel in

Alaska consistently followed the interpretation in official advice to guides and guide services.”

Id. at 1031-32.




                                                  15
       In January 1998, the FAA reversed course and published a “Notice to Operators” that

“required the[] guide pilots to abide by FAA regulations applicable to commercial air

operations.” Id. at 1030. Drawing on its decision in Paralyzed Veterans, 117 F.3d at 586, the

Circuit found that this modification of the FAA’s longstanding policy exempting the guide pilots

from the FAA regulations mandated the use of notice and comment rulemaking. Id. at 1035-36.

The Circuit concluded that “current doubts about the wisdom of the regulatory system followed

in Alaska for more than thirty years does not justify disregarding the requisite procedures for

changing that system.” Id. at 1035.

       1.      Is Paralyzed Veterans still good law?

       The defendants argue that two Supreme Court cases conflict with Paralyzed Veterans and

Alaska Professional Hunters. Defs.’ Mot. at 15-17. First, they argue that Paralyzed Veterans

cannot be reconciled with the holding in Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519, 524 (1978). Defs.’ Mot. at 15-17. In Vermont

Yankee, the Supreme Court reiterated its previous conclusion “that generally speaking,” the

APA’s notice and comment requirements “established the maximum procedural requirements

which Congress was willing to have the courts impose upon agencies in conducting rulemaking

procedures.”   Vermont Yankee, 435 U.S. at 524.         The Supreme Court further stated that

“[a]gencies are free to grant additional procedural rights in the exercise of their discretion, but

reviewing courts are generally not free to impose [additional procedural requirements] if the

agencies have not chosen to grant them.” Id. (emphasis added). The defendants argue that this

limitation imposed on courts by Vermont Yankee conflicts with the requirements imposed by

Paralyzed Veterans; namely, the requirement that an agency must employ the notice and

comment process if they wish to change a prior interpretation of their own regulations, Defs.’



                                                16
Mot. at 16-17, since the Supreme Court observed that only in “extremely rare” circumstances

may courts impose “procedures beyond those required by the statute,” Vermont Yankee, 435

U.S. at 524; see Defs.’ Mot. At 16-17.

       This Court is “obligated to follow controlling [C]ircuit precedent until either [the

Circuit], sitting en banc, or the Supreme Court, overrule it.” United States v. Torres, 115 F.3d

1033, 1036 (D.C. Cir. 1997). Thus, even if this Court “disagree[d] with circuit precedent” its

“obligation” to follow such precedent would not be relieved. Id. Moreover, having been decided

nearly twenty years before Paralyzed Victims, the District of Columbia Circuit was presumably

aware of the existence of Vermont Yankee when it authored its opinion in Paralyzed Veterans.

And this Court is not prepared to find that the Circuit disregarded Supreme Court precedent

when it decided Paralyzed Victims.

       The defendants are correct in stating that seven courts of appeals have held that the notice

and comment provisions found in section 553 of the APA do not apply to interpretative rules.

Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Cross Motion to Dismiss or, in the

Alternative, for Summary Judgment (“Defs.’ Reply”) at 9. However, this Circuit, in deciding

Paralyzed Veterans, Alaska Professional Hunters, and other cases that have addressed the same

subject, see, e.g., Kelley v. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994); Am. Mining Cong. v.

MSHA, 995 F.2d 1106, 1109 (D.C. Cir. 1993), has ruled that if an interpretation of a statute or

rule “itself carries the force and effect of law,” Paralyzed Veterans, 117 F.3d at 588 (quotation

marks and citations omitted), the agency is required to use notice and comment procedures. And

this Court had the occasion to apply Paralyzed Veterans in a case with similarities to this case.

See Tripoli Rocketry Ass’n v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 337 F. Supp.

2d. 1, 13 (D.D.C. 2004), rev’d on other grounds, 437 F.3d 75 (D.C. Cir. 2006) (Walton, J.)



                                               17
(“[B]efore the [agency] could alter[] its earlier interpretation of the [regulation], it was required

to undertake notice-and-comment rulemaking as required by the APA[.]”). Thus, this Court

cannot, and will not, find that Vermont Yankee commands that it refuse to follow a Circuit case

that was decided two decades later, and has remained good law in this Circuit for almost fifteen

years.

         Second, the DOL argues that Paralyzed Veterans and Alaska Professional Hunters were

overturned by the recent Supreme Court decision in FCC v. Fox Television Stations, Inc., 556

U.S. 502 (2009). The DOL relies on language from Fox Television, stating that the APA “makes

no distinction . . . between initial agency action and subsequent agency action undoing or

revising that action.” Defs.’ Mot. at 15 (quoting Fox Television, 556 U.S. at 515).             Fox

Television concerned two television live broadcasts during which expletives were used, resulting

in the Federal Communication Commission’s (“FCC”) issuance of two “[n]otices of [a]pparent

[l]iability” based on the FCC’s finding that the two occurrences were “actionably indecent.” 556

U.S. at 508-512.    Prior to the commission of these two incidents, the FCC had permitted

networks to broadcast “fleeting” expletives without punishment. Id. The FCC reversed course

with regard to the two incidents in question, finding that the broadcasts were indecent, even

though both contained only “fleeting” expletives. Id. at 512, 530. The Second Circuit found that

the FCC’s decision changing its policy was not in compliance with the APA due, in part, to its

failure to provide an adequate reason for the change. Id. at 513-514; see 5 U.S.C. § 706(2)(A).

On review of that ruling, the Supreme Court rejected the Second Circuit’s position, “find[ing] no

basis in the [APA] or in [its] opinions for a requirement that all agency change be subjected to

more searching review.” Fox Television, 556 U.S. at 514.




                                                 18
       The language in Fox Television which the defendants contend invalidates Paralyzed

Veterans, when considered in conjunction with the entire majority opinion in Fox Television,

implicates the APA’s arbitrary and capricious review, not its notice and comment process. In

fact, the Supreme Court made perfectly clear the question it was addressing, holding that “we

find the [FCC’s] orders neither arbitrary nor capricious.” Id. at 530. So what the defendants are

seeking to do is have this Court expand the reach of Fox Television beyond the question the

Supreme Court actually addressed. That, this Court cannot do, as the Fox Television decision

has no bearing on whether an agency must employ the notice and comment process before

changing its policies. The answer to that question requires this Court to look to Paralyzed

Veterans and its progeny, in the absence of en banc Circuit authority or Supreme Court

repudiation of those decisions. Torres, 115 F.3d at 1036. Neither has occurred, so Paralyzed

Veterans and its line of cases remains controlling authority in this Circuit.

       2.      The Paralyzed Veterans Doctrine and Alaska Professional Hunters Rationale

       Having determined that Paralyzed Veterans remains controlling authority in this Circuit,

the Court must now turn its attention to the exceptions to Paralyzed Veterans, which the

defendants contend have been recognized by the Circuit and are relied upon by the defendants in

this litigation. As the alternative position to their argument that this Court should not follow

Paralyzed Victims, the defendants argue that these two purported exceptions to the applicability

of Paralyzed Veterans weigh in favor of granting them summary judgment. First, they contend

that MetWest Inc. v. Secretary of Labor, 560 F.3d 506 (D.C. Cir. 2009), alleviates the

requirement of utilizing notice and comment when a party did not “substantially and justifiably”

rely upon an earlier agency interpretation. Defs.’ Mot. at 22-26. Second, the defendants argue




                                                 19
that the “invalid prior interpretation” exception purportedly recognized in Monmouth Med. Ctr.

v. Thompson, 257 F.3d 807 (D.C. Cir. 2001), applies here. Id. at 18-22.

       The MetWest case raised the question of whether MetWest could “be held liable for

violating a regulation governing the removal of needles from equipment used to extract blood.”

560 F.3d at 507-508. Dating back to 1991 when the needle removal regulation was adopted, the

Occupation, Safety and Health Administration (“OSHA”) “declined to enforce [the regulation]

against employers who supplied their employees with reusable blood tube holders.” Id. at 508-

09. In October 2003, OSHA changed its policy through the issuance of a “guidance document,”

which stated that the use of reusable blood holders “likely violated” the regulation. Id. at 509.

MetWest brought suit following the change, arguing that the agency was required to employ

notice and comment rulemaking before altering its interpretation of the needle removal

regulation. Id.

       The Circuit in MetWest reiterated that its holding in Alaska Professional Hunters was

“that an agency’s practice of advising affected entities—in a prior agency adjudication and the

consistent advice of agency officials over a 30-year period—that a regulation did not apply to

them established ‘an authoritative departmental interpretation’ that could not be changed without

notice and comment.” Id. at 511 (citation omitted). 8 The MetWest court emphasized that “[a]

fundamental rationale of Alaska Professional Hunters was the affected parties’ substantial and

justifiable reliance on a well-established agency interpretation.” Id. (emphasis added). The

Circuit noted that “[t]his is a crucial part of the analysis” and that “[t]o ignore it is to

misunderstand Alaska Professional Hunters to mean that an agency’s initial interpretation, once

informally adopted, freezes the state of agency law, which cannot subsequently be altered

8
 The MetWest opinion was authored by Judge Raymond Randolph, who also authored the Alaska Professional
Hunters opinion.


                                                 20
without notice-and-comment rule-making.” Id. at 511 n.4 (citations and internal quotation marks

omitted). And in Alaska Professional Hunters, notice and comment rulemaking was deemed

necessary before an interpretation of a regulation could be changed, because, in that case, people

had moved to Alaska and started businesses with the understanding that an agency’s regulations

did not apply to an essential component of their operations due to the position the agency had

taken over a 30-year period. Id. at 511 (citing Alaska Professional Hunters, 177 F.3d at 1035

(alterations in original)). Concluding that “[t]he situation [in MetWest was] not comparable” to

the situation in Alaska Professional Hunters, MetWest’s challenge to the Agency action was

rejected because “OSHA never established an authoritative interpretation of its regulation on

which MetWest justifiably relied to its detriment.” Id.

       The plaintiff takes exception to the defendants’ claim that MetWest limits the

applicability of Paralyzed Veterans to cases where a “party’s reliance upon a prior interpretation

[of an agency’s regulation] was both substantial and justifiable.” Plaintiff’s Reply in Support of

its Motion for Summary Judgment and Opposition to Defendants’ Motion to Dismiss or in the

Alternative for Summary Judgment (“Pl.’s Reply”) at 15 (internal quotation marks omitted). The

plaintiff argues that “some new reliance exception to Paralyzed Veterans” was not created by

MetWest because “MetWest’s discussion of substantial and justifiable reliance was in the

content of assessing whether an informal interpretation by [OSHA] could even be an

authoritative departmental interpretation” Id. (internal quotation marks omitted).

       While it is true that the court in MetWest noted that the agency “never established an

authoritative interpretation of its regulation on which MetWest justifiably relied to its detriment,”

the court’s holding was not grounded solely on that fact. MetWest, 560 F.3d at 511. Rather, the

ruling of the circuit was also based on the assessment of whether there had been “substantial and



                                                 21
justifiable reliance on a well-established agency interpretation” by MetWest, which was essential

to imposing the notice and comment obligation on the agency. Id. (emphasis added). So

regardless of whether MetWest carved out an exception to Paralyzed Veterans or just clarified

what the court intended to convey when it said in Alaska Professional Hunters that the plaintiffs

there had “relied” on the agency’s initial interpretation, 177 F.3d at 1035, this Court is convinced

that MetWest intended to set the bar for what a plaintiff must establish to satisfy the reliance

component of the Paralyzed Veterans doctrine.

       The plaintiff argues alternatively that even if MetWest did add a substantial and

justifiable reliance component to the Paralyzed Veterans doctrine, they “quite plainly relied,

substantially and justifiably so, on the 2006 Opinion Letter.” Pl.’s Reply at 17. The Association

relies in part upon the Portal-to-Portal Act of 1947 for this position, id. at 17-25, which gives

employers a complete defense to liability if they rely in good faith on the opinion of the

Administrator of the Wage and Hour Division. This Act states that

       no employer shall be subject to any liability or punishment for or on account of
       the failure of the employer to pay . . . overtime compensation under the [FLSA], if
       he pleads and proves that the act or omission complained of was in good faith in
       conformity with and in reliance on any written administrative regulation, order,
       ruling, approval, or interpretation . . . .”

29 U.S.C. § 259(a) (2006). In a footnote, the plaintiff points to a number of other trade

associations that have been sued since the issuance of the 2010 AI, and purportedly relied upon

the 2006 Opinion Letter as a defense under 29 U.S.C. § 259(a). Pl.’s Reply at 19 n.26. And the

plaintiff takes exception to what it claims is the defendants’ position that reliance must equate to

circumstances analogous to those in Alaska Professional Hunters, opining that “[i]t would thus

be quite odd to read the APA as requiring notice and comment only where an industry can

demonstrate it will be put out of business.” Id. at 20. In opposition, the defendants argue that



                                                22
“[t]he contrast between Alaska Professional Hunters and the present matter is stark.” Defs.’

Reply at 5. They note that in Alaska Professional Hunters, “people uprooted their lives, moved

across the country, and spent 30 years building up an entire industry in particularly substantial

and justifiable reliance on an agency interpretation.” Id. They further posit that it was precisely

this reliance that “stirred the [District of Columbia] Circuit to act.” Id. The defendants opine

that “at most [the Association] and its members operated under the misapprehension that

mortgage loan officers were administratively exempt for four years, and structured their pay

systems accordingly, before [the] DOL corrected th[e] error.” Id.

       The Court agrees with the defendants. As noted above, the MetWest court stressed that a

core tenant of the Alaska Professional Hunters decision was “substantial and justifiable reliance

on a well-established agency interpretation.” MetWest, 560 F.3d at 511. The interpretation

allegedly relied upon by the Association and its members here was only in effect for a period of

four years, from 2006 to 2010. See A.R. 87-93 (2006 Opinion Letter). Prior to that, the DOL

had taken the position that mortgage loan officers were not exempt employees, and were

therefore entitled to overtime pay. See, e.g., A.R. 4-5 (1999 Opinion Letter). Unlike the

plaintiffs in Alaskan Professional Hunters, here the Association does not allege that any of its

members uprooted their families and moved to a new location in search of business

opportunities. Pl.’s Reply at 23. Rather, in the words of the Association itself, employees of

financial service firms have merely “become accustomed to the freedom to control their own

hours and breaks.” Id. While the Court appreciates that having to keep accurate time records

may impose an additional burden on the Association’s members and their employees, the loss of

the freedom to control one’s work hours and break times is not the kind of “substantial and

justifiable reliance” that Alaskan Professional Hunters had in mind, especially when such



                                                23
reliance was short lived given the many years that the parties had previously relied upon the

interpretation that mortgage loan officers were not covered by the administrative exemption.

       Further, the argument that the Association makes under the Portal-to-Portal Act actually

weakens its overall position. See Pl.’s Reply at 17-18. As the Association points out, the Portal-

to-Portal Act provides that, if the employer “proves that the [failure to pay overtime] was in good

faith in conformity with and in reliance on any written administrative . . . interpretation,” then the

employer “shall [not] be subject to any liability or punishment.” 29 U.S.C. § 259(a). Thus,

assuming this provision applies, the plaintiff could not be said to have relied upon the prior

interpretation to its detriment, as its members will not be liable for any damages resulting from

the prior interpretation due to their good faith reliance. Id. While the Court need not reach that

conclusion, it is at least worth nothing that the Association’s invocation of the Portal-to-Portal

Act undermines its position that it “substantial[ly] and justifiabl[ly]” relied upon the 2006

Opinion Letter to the level required by the Circuit in MetWest, 560 F.3d at 511.

       Having concluded that the association has failed to satisfy the standard for demonstrating

reliance recognized in MetWest, the Court need not address the defendants’ additional argument

that notice and comment was not required for the 2010 AI based on the Circuit’s decision in

Monmouth, 257 F.3d at 807.

       B.      Is the 2010 AI Inconsistent with the DOL’s 2004 Regulations?

       The plaintiff argues that even if the 2010 AI was lawfully adopted, it is “inconsistent with

the plain language of 29 C.F.R. § 541.203(b),” Memorandum of Points and Authorities in

Support of Plaintiff’s Motion for Summary Judgment (“Pl.’s Mem.”) at 26, and thus “it is

arbitrary, capricious, and contrary to law,” id. at 3. In essence, the plaintiff argues that the work

performed by mortgage loan officers discussed in the 2010 AI are identical to the job duties



                                                 24
discussed in 29 C.F.R. § 541.203(b), which provides examples of job duties that are exempt from

the FLSA’s overtime pay requirement.                   Pl.’s Mem. at 26-27.            29 C.F.R. § 541.203(b)

contemplates that an employee who “collect[s] and analyz[es] information regarding the

customer’s income, assets, investments or debts,” “determin[es] which financial products best

meet the customer’s needs and financial circumstances,” and “advis[es] the customer regarding

the advantages and disadvantages of different financial products” might be found exempt under

the administrative exemption.           In its memorandum submitted in support of its motion, the

plaintiff notes that very similar language was used in the 2010 AI, but that in the 2010 AI, the

DOL reached a different result in finding mortgage loan officers non-exempt from the FLSA’s

overtime requirement. Pl.’s Mem. at 26-27.

         The DOL does not dispute that the language found in the two documents is similar.

Defs.’ Reply at 15. However, it contends that the job duties found in 29 C.F.R. § 541.203(b) are

merely intended to provide examples of when a financial services employee might be exempt

under the administrative exception. Id. The defendants argue that by “[a]pplying the general

administrative duties test in § 541.200(a), in conjunction with the financial services example in §

541.203(b),” the 2010 AI came to the conclusion that the mortgage loan officers in question were

not exempt from the FLSA’s overtime pay requirement. Id. (citing A.R. 105-108

(Administrator’s Interpretation No. 2010-01)). 9




9
  The defendants have offered supplemental authority—Lewis v. Huntington National Bank, No. C211CV0058,
2012 WL 765077 (S.D. Ohio Mar. 12, 2012)—as additional support for their position that the 2010 AI is not
arbitrary and capricious. See Defendants’ Notice of Supplemental Authority. Although the case is distinguishable
from this case for a variety of reasons, the Southern District of Ohio did find that “because the [2010 AI] applies the
test set forth in § 541.200(a), consistently with the example contained in § 541.203(b), there can be no serious
argument that [the 2010 AI] was either erroneous or inconsistent with the 2004 revised regulations.” Lewis, No.
C211CV0058, 2012 WL 765077 at 32 (S.D. Ohio Mar. 12, 2012).



                                                         25
        The Court finds the DOL’s argument persuasive. The administrative exemption of 29

C.F.R. § 541.200, entitled “General rule for administrative employees,” provides in part that an

“employee employed in a bona fide administrative capacity” is one “[w]hose primary duty is the

performance of office or non-manual work directly related to the management or general

business operations of the employer or the employer’s customers.” 29 C.F.R. § 541.200(a)(2).

The language relied upon by the plaintiff is found in 29 C.F.R. § 541.203(b), which is entitled

“Administrative exemption examples,” and it provides, in part, that “[e]mployees in the financial

services industry generally meet the duties requirements for the administrative exemption . . . .

However, an employee whose primary duty is selling financial products does not qualify for the

administrative exemption.” 29 C.F.R. § 541.203(b) (emphasis added). On its face, and

considering the title of the provision, it is clear that § 541.203(b) was intended to provide

examples, not an alternative test for the applicability of the administrative exception. Id. Thus,

while financial services employees who perform the duties listed in § 541.203(b) are “generally”

able to qualify for the administrative exemption, the DOL is still tasked with determining

whether specific employees’ “primary duty is selling financial products.” Id. If so, the employee

“does not qualify for the administrative exemption.” Id. Given the DOL’s reasoning for why the

exemption does not apply here, the Court must find that the 2010 AI is not inconsistent with the

2004 regulations; thus, the 2010 AI is not arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law. 10


10
   The Court is aware that there is currently a dispute between the defendants and the intervenors as to whether the
2010 AI applies both prospectively and retroactively. In resolving this case, however, the Court need not reach a
conclusion on that issue, as the intervenors, the plaintiff, and the defendants acknowledge. See Intervenors’
Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion for Summary Judgment and in Support
of Defendants’ Motion to Dismiss at 31-32 n.12; Defendants’ Reply to Intervenors’ Memorandum in Opposition to
Plaintiff’s Motion for Summary Judgment and in Support of Defendants’ Motion to Dismiss at 1; Plaintiff’s Reply
in Support of its Motion for Summary Judgment (Response to Intervenors filed on March 14, 2012) at 3. The Court
agrees with the parties and, therefore, declines to address the issue.


                                                        26
                                             IV.     CONCLUSION

           The Association has failed to satisfy the Paralyzed Veterans doctrine of substantial and

justifiable reliance, which was also recognized in MetWest; thus, both their arguments as to

reliance and as to notice and comment procedures must fail. Further, § 541.203(b) was not

intended to serve as an alternative test for the applicability of the administrative exception. As

such, the 2010 AI is not inconsistent with the 2004 regulations and is not arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with the law. Accordingly, the Court must

grant in part and deny in part the Defendants’ Cross-motion to Dismiss or, in the Alternative for

Summary Judgment and deny the Plaintiff’s Motion for Summary Judgment.

           SO ORDERED. 11




                                                                     REGGIE B. WALTON
                                                                     United States District Judge




11
     The Court will issue an Order contemporaneously with this Memorandum Opinion.


                                                       27
