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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50880                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
KEITH LEON AUSTIN,                                                          June 11, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

UNITED STATES OF AMERICA, Department of the U.S. Army,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-277


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Sergeant Keith Leon Austin claims that the United
States Army improperly denied him benefits under the Servicemembers’
Group Life Insurance Traumatic Injury Protection (“TSGLI” 1) program for
injuries he suffered during his service in Iraq. He filed suit in district court



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 TSGLI is an extension of the Servicemembers’ Group Life Insurance (“SGLI”)
program. Thus, the acronym “TSGLI” reflects this history, rather than being an acronym
from the exact name of the program.
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                                       No. 14-50880
challenging the Army’s decision to award him only $25,000 of the $100,000 he
requested in insurance benefits under TSGLI. The district court granted the
Army’s motion for summary judgment and dismissed Sgt. Austin’s action,
holding that the partial denial of Sgt. Austin’s claim was not arbitrary and
capricious. We affirm.


                       I.      FACTS AND PROCEEDINGS
      In mid-2007, Sgt. Austin was involved in a motor vehicle accident during
a combat mission in Iraq. He suffered injuries to his neck, back, and head. In
January 2009, he underwent back surgery to relieve his worsening pain. That
August, following months of convalescence, Sgt. Austin was cleared to return
to light work duty. The injuries he suffered, however, eventually led him to
retire from the Army in December 2010.
      Members of the armed services may participate in the TSGLI program,
which provides financial assistance to service members who suffer traumatic
injuries. 2 To receive TSGLI benefits, a service member must have suffered a
“qualifying loss.” 3 A traumatic injury like Sgt. Austin’s, that results in an
“inability to perform at least 2 Activities of Daily Living (ADL)” independently,
qualifies as such a loss. 4 The statute recognizes six ADLs: bathing, continence,
dressing, eating, toileting, and transferring (in or out of a bed or chair). 5
TSGLI will pay $25,000 for each consecutive 30-day period of ADL loss, up to
a maximum of $100,000 for 120 consecutive days.
      To apply for benefits, a plan participant must file a form SGLV 8600 with
his service branch. This form has two parts: Part A, to be filled out by the



      2 See 38 U.S.C. § 1980A.
      3 Id. § 1980A(a)(1).
      4 38 C.F.R. § 9.20(f).
      5 38 U.S.C. § 1980A(b)(2)(D); see also 38 C.F.R. § 9.20(e)(6)(vi).

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                                  No. 14-50880
claimant, and Part B, the “Medical Professional’s Statement,” in which the
claimant’s physician must certify the qualifying losses claimed.          Part A
includes an authorization for release of medical records under the Health
Insurance Portability and Accountability Act (“HIPAA”).
      The claim is then reviewed by a certifying official at the claimant’s
branch of service. If that official approves any benefits, he instructs Prudential
Life Insurance Company of America, the private insurance company that
administers the TSGLI program, to pay such benefits and to notify the
claimant if any part of the claim has been denied.
      Sgt. Austin applied for TSGLI benefits sometime between November
2009 and March 2010. His application comprised his completed SGLV 8600,
on which he claimed 120 days of three ADL losses (bathing, dressing, and
transferring functions) and a collection of medical records. The surgeon who
performed Sgt. Austin’s back surgery, Dr. Masaki Oishi, certified this loss.
Notably, Dr. Oishi indicated that his certification was based on a review of Sgt.
Austin’s medical records, not on the physician’s direct personal observation.
      The medical records submitted by Sgt. Austin covered the period from
July 2007 to November 2009; none covered the four months immediately
following his surgery, January 13 to May 15, 2009, the period for which Sgt.
Austin claimed ADL loss. Sgt. Austin also submitted a “TSGLI Activities of
Daily Living (ADL) Worksheet,” a supplemental form that provided more
details on his claimed ADL losses. In that form, Sgt. Austin claimed a fourth
ADL loss, adding toileting to the three ADL losses already claimed on his form
SGLV 8600. Dr. Oishi also certified that supplemental ADL worksheet.
      Dr. Alan Janusziewicz, a TSGLI medical consultant, reviewed Sgt.
Austin’s claim and recommended that he receive benefits for only the first 30
days of ADL loss. Most significantly to this case, he noted that “[n]o medical
records from the period of claimed loss [were] submitted” and that Sgt. Austin’s
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                                 No. 14-50880
“injury and treatment [were] consistent with ADL impairment for up to a
month in the post-operative period.” In March 2010, an Army certifying officer
approved Sgt. Austin’s entitlement to $25,000 in benefits for 30 days of ADL
loss but denied the remainder of his claim. Sgt. Austin received this $25,000
on April 1, 2010.
      On January 31, 2011, Sgt. Austin sent a handwritten request to the
Army TSGLI Appeals Board asking for reconsideration of the remaining
$75,000. He enclosed copies of six additional items of documentation: (1) a
statement from the battle buddy who witnessed the 2007 accident; (2) his
retirement orders from the Army, which cited his permanent physical
disability as a result of the accident; (3) statements from his wife and stepson;
(4) his two requests for leave starting on January 12, 2009, and May 13, 2009;
(5) a note from Dr. Oishi dated May 13, 2009, indicating that Sgt. Austin should
remain off work until August 17, 2009; and (6) a note from Dr. Oishi dated
August 13, 2009, indicating that Sgt. Austin could return to work in a limited
fashion. Of these six, only the statements from Sgt. Austin’s wife and stepson
address his inability to perform ADL functions during the 120-day period that
followed his surgery.
      The   same     Army    certifying       officer    reviewed    the   request    for
reconsideration and denied it, noting that Sgt. Austin had submitted “no new
medical documents for review.” On March 14, 2011, Prudential wrote to Sgt.
Austin, notifying him of this decision. This letter, however, only informed Sgt.
Austin that his claim had been denied because his “loss did not meet the
standards for TSGLI.”
      At that point, Sgt. Austin retained a lawyer, who, on December 8, 2011,
wrote to the Army, appealing its denial of Sgt. Austin’s request for
reconsideration. That letter pointed out that Prudential’s March 14 writing
did “not contain a loss disposition code as required by [the] TSGLI Procedures
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                                        No. 14-50880
Guide.” Sgt. Austin’s lawyer also enclosed a statement from Sgt. Austin, copies
of the statements from his wife and stepson that had been submitted
previously, and a copy of the supplemental ADL worksheet from Sgt. Austin’s
original application for benefits.
       Sgt. Austin’s appeal was rejected on February 29, 2012, for the same
reason as before: “No documentation from period of ADL loss claimed . . . .” 6
This time, he received a letter from the chief of the Army TSGLI branch,
explaining that “medical documentation from the period which [Sgt. Austin
was] claiming” 7 was required “to properly adjudicate” his claim. This letter
also gave information on his appeal rights.
       Sgt. Austin did not submit medical documents for the relevant period.
Instead, he filed this suit on March 26, 2014, asserting a claim for breach of
contract. The Army filed a motion for summary judgment dismissing this
action. The district court granted that motion on the ground that the Army’s
partial denial of Sgt. Austin’s claim was not arbitrary and capricious. This
appeal followed.


                                     II.    ANALYSIS
A.     Standard of Review
       38 U.S.C. § 1975 confers jurisdiction on the federal district courts to
adjudicate claims founded on the TSGLI program. Neither § 1975 nor § 1980A
specify a standard of review for these agency decisions. 8 We therefore turn to
the default rule found at 5 U.S.C. § 706(2) “and ask whether the [a]gency’s


       6  Emphasis added.
       7  Emphasis added.
        8 Sgt. Austin suggests that 38 U.S.C. § 1980A ought to be construed in his favor, as

“legislation is to be liberally construed for the benefit of those who left private life to serve
their country in its hour of great need.” Fishgold v. Sullivan Drydock & Repair Corp., 328
U.S. 275, 285 (1946). But neither party points to any ambiguity in the statute whose
interpretation would be aided by this canon.
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                                        No. 14-50880
action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law’” 9 and whether it satisfies “statutory, procedural, [and]
constitutional requirements.” 10           “[C]onsideration is . . . confined to the
administrative record.” 11
       In applying this highly deferential standard of review, courts afford
agency actions a “presumption of regularity” 12 and defer to them even if the
court would have decided the issue differently. 13                 “While the court ‘must
consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment,’ and while ‘this
inquiry into the facts is to be searching and careful, the ultimate standard of
review is a narrow one.’” 14 An agency’s decision passes muster if it “articulated
a rational connection between the facts found and the decision made.” 15 This



       9 Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 496–97 (2004) (quoting 5
U.S.C. § 706(2)(A)); accord Hayward v. U.S. Dep’t of Labor, 536 F.3d 376, 379 (5th Cir. 2008)
(per curiam).
       10 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971) (citing 5 U.S.C.

§ 706(2)(B)–(D)). Both parties rely on the substantial-evidence standard, but review under 5
U.S.C. § 706(2)(E) is only indicated in particular narrow circumstances. See 5 U.S.C.
§ 706(2)(E); Overton Park, 401 U.S. at 414 (“Review under the substantial-evidence test is
authorized only when the agency action is taken pursuant to a rulemaking provision of the
Administrative Procedure Act itself, or when the agency action is based on a public
adjudicatory hearing.” (citation omitted)). There is no indication that the Army’s partial
denial of Sgt. Austin’s request for TSGLI benefits occurred via a formal adjudicative hearing.
See Weller v. United States, No. 14-68-SCR, 2014 WL 5320133, at *4 n.7 (M.D. La. Oct. 17,
2014).
       11 United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963).
       12 Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir. 1983)

(quoting Overton Park, 401 U.S. at 415) (internal quotation mark omitted).
       13 Hasie v. Office of the Comptroller of the Currency of the U.S., 633 F.3d 361, 365 (5th

Cir. 2011).
       14 Avoyelles, 715 F.2d at 904 (quoting Overton Park, 401 U.S. at 416).
       15 Hayward v. U.S. Dep’t of Labor, 536 F.3d 376, 380 (5th Cir. 2008) (per curiam)

(quoting Pension Benefit Guar. Corp. v. Wilson N. Jones Mem’l Hosp., 374 F.3d 362, 367 (5th
Cir. 2004)) (internal quotation marks omitted); see also 10 Ring Precision, Inc. v. Jones, 722
F.3d 711, 723 (5th Cir. 2013) (“We will uphold an agency’s action ‘if its reasons and policy
choices satisfy minimum standards of rationality.’” (quoting Medina Cnty. Envtl. Action Ass’n
v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010))).
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articulation need not be perfect, so long as the agency’s reasoning can be
discerned. 16
B.     Merits
       Sgt. Austin raises three specific objections to the Army’s handling of his
claim and the district court’s judgment upholding that handling: (1) Any
deficiency in his application that resulted from his failure to provide medical
records for the period of January 13 to May 15, 2009, should be attributed to
the Army, which, he claims, had a duty to seek out those records; (2) the district
court erred when it failed to consider Dr. Oishi’s certification of Part B of Sgt.
Austin’s form SGLV 8600 and when it discounted the probative value of his
supplemental ADL worksheet and family statements; and (3) Prudential did
not adequately inform him of the reason that his claim was partially denied.
       1.       HIPAA Authorization
       According to Sgt. Austin, the Army failed “to follow their own regulations
in requesting medical records”—that is, the Army acted arbitrarily and
capriciously by requiring him to sign a HIPAA release in Part A of his
application, but then not following up on that authorization by requesting the
missing medical records from his medical providers. This argument fails for
multiple reasons.
       First, we have been unable to find any authority that supports Sgt.
Austin’s theory that collecting a HIPAA release confers on the collecting entity
an affirmative duty to use it to collect reports and records.                       His only
“evidence”—a sentence in the Federal Register, 17 a section of the TSGLI


       16 Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004) (“Even when
an agency explains its decision with ‘less than ideal clarity,’ a reviewing court will not upset
the decision on that account ‘if the agency's path may reasonably be discerned.’” (quoting
Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974))).
       17 See Traumatic Injury Protection Rider to Servicemembers’ Group Life Insurance,

70 Fed. Reg. 75,940, 75,945 (Dec. 22, 2005) (explaining that the HIPAA release was required
as part of Form SGLV 8600 “so that the service departments and OSGLI can obtain necessary
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Procedural Guide published by the Department of Veterans Affairs, 18 and an
online interview with a TSGLI administrator 19—suggests, at most, that with
the HIPAA release in hand, the Army could have sought out his medical
records, not that it was obligated to do so.                Indeed, the TSGLI interview
actually indicated that the burden of furnishing relevant records rested with
the service member, not the service branch processing his claim. 20
       Second, to the extent that Sgt. Austin now relies on 38 U.S.C. § 5103A,
which imposes a duty on the Secretary of Veterans Affairs to help claimants
who apply for veterans benefits, 21 he has waived the issue. Sgt. Austin did not
raise § 5103A before the district court or in his opening brief on appeal. 22
       Finally, Sgt. Austin’s HIPAA release was defective. He failed to date it,
thus rendering it legally inoperable. 23 Although he suggests that the Army
had an obligation to inform him of this oversight and allow him to correct it,
he cites no authority for this proposition.




medical information to determine if the service member is eligible for the benefit” (emphasis
added)).
        18 See DEP’T OF VETERANS AFFAIRS, TRAUMATIC INJURY PROTECTION UNDER

SERVICEMEMBERS’ GROUP LIFE INSURANCE (TSGLI): A PROCEDURAL GUIDE 58–59 (2015),
http://www.benefits.va.gov/INSURANCE/docs/TSGLIProceduresGuide.pdf                  (instructing
TSGLI certifying officers to use a certain form to request additional information from a
medical professional “when [the information] is needed to adjudicate the TSGLI claim”).
        19 See TSGLI: Traumatic Servicemembers’ Group Life Insurance, BLACKFIVE (July

8, 2007), http://www.blackfive.net/main/2007/07/tsgli-traumatic.html.
        20 See id. (“Therefore, it’s unfortunately incumbent on -- and this has put a little bit of

a burden on the soldier and the medical side, but typically the servicemember needs to go to
the personnel administration division of each hospital and procure a copy of their records.”).
        21 See 38 U.S.C. § 5103A(a)(1) (“The Secretary shall make reasonable efforts to assist

a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit
under a law administered by the Secretary.”); id. § 5103A(b)(1) (“As part of the assistance
provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant
private records that the claimant adequately identifies to the Secretary.”).
        22 See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir. 1995);

FDIC. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).
        23 See 45 C.F.R. § 164.508(b)(2)(ii), (c)(1)(vi).

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                                     No. 14-50880
      In conclusion, there is no evidence that the Army breached a contractual
obligation to Sgt. Austin by failing to seek out medical records for the months
of convalescence following his surgery for which he sought ADL loss
compensation. We agree with the district court that the Army did not act
arbitrarily and capriciously in this matter.
      2.     Dr. Oishi’s Certification and Sgt. Austin’s Family Statements
      Sgt. Austin also asserts that the Army acted arbitrarily and capriciously
in partially denying his claim in spite of his physician’s certification of his ADL
loss and his family members’ statements corroborating his account. As noted
above, the standard of review on this issue is highly deferential to the agency’s
decision, which may be upheld as long as it is rationally related to the factual
record.
      Despite Dr. Oishi’s certification and Sgt. Austin’s wife’s and stepson’s
statements, the Army articulated a rational reason for granting him benefits
for only 30 days’ ADL loss. Sgt. Austin did not produce, and still has not
produced, any medical records whatsoever for the subject period of January 13
to May 15, 2009, nor has he stated definitely that such records do not exist. It
is not irrational for the Army to require production of all relevant medical
records regarding ADL loss for the periods at issue, particularly when, as here,
the medical consultant who reviewed Sgt. Austin’s other medical records
concluded that his condition was consistent with only 30 days’ loss.
      Sgt. Austin contends that Dr. Oishi’s certification on Part B of the
application form should have been enough. Yet the Army is free to seek a
second opinion when evaluating claims, 24 and indeed, there is authority to


      24 See Fail v. USA, No. 12-CV-01761, 2013 WL 5418169, at *6 (D. Colo. Sept. 27, 2013)
(“The record indicates that the Army chose not to simply defer to Ms. Burns’ opinions, and
instead, reviewed Mr. Fail’s medical records itself to determine whether such records
supported the claimed limitations. This Court cannot say that the Army’s decision to do so
was inherently arbitrary and capricious, an abuse of discretion, or contrary to law.”).
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support deferring to the agency’s in-house expertise. 25                 Furthermore, Dr.
Oishi’s certification was problematic in several ways. First, he did not provide
any descriptions of the assistance that Sgt. Austin needed: The “Describe
assistance needed” box next to each checked ADL function was left blank, as
was the space for “Medical Professional’s Comments” at the end of the form.
Second, Dr. Oishi provided very little information about himself, leaving blank
much of the “Medical Professional’s Information” section of the form. Third,
Dr. Oishi signed the certification but failed to date it. Fourth, he did not check
the box certifying personal observation of Sgt. Austin’s loss, but rather
indicated that his opinion was based solely on his post hoc review of Sgt.
Austin’s medical records. It was not arbitrary and capricious for the Army to
grant little weight to this certification, given the sparseness and secondhand
nature of Dr. Oishi’s opinions.
       Dr. Oishi also certified Sgt. Austin’s supplemental ADL worksheet,
which did provide more detail on the assistance Sgt. Austin required. This
worksheet, however, was problematic in its own way. First, the directions
specified    that    it   was    “to   be    completed      by     a    Licensed    Medical
Professional . . . [or] by [a] family member and . . . be validated by [a] Licensed
Medical Professional.” Yet the form was clearly completed by Sgt. Austin
himself, as it described Sgt. Austin’s activities using the first person. Second,
there is an inconsistency between this worksheet, which claims four ADL
losses, and Part B of the application, which claims only three. As Dr. Oishi
certified both documents, the Army would be reasonable to question Dr. Oishi’s
review of these documents and to seek a second opinion.                         Third, this
supplemental worksheet too was incomplete, as the “Narrative Summary” box


       25See id. (“[T]he courts have found that an agency staff's full-time devotion to claims
review and the goal of uniform nationwide application of agency standards counsel in favor
of granting deference to the agency's expertise in such matters.”).
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                                       No. 14-50880
was left blank. Given these problems with the two forms certified by Dr. Oishi,
the Army was not irrational to discount them in its analysis of Sgt. Austin’s
claim.
       Sgt. Austin is correct that his wife’s and stepson’s statements
corroborate his claim of ADL loss, but again, the Army was not irrational to
insist on seeing actual medical records for the period in question. In another
TSGLI case, the mere fact that the administrative record contained some
evidence supporting the claimant’s ADL loss was not enough to render the
agency’s decision to deny benefits arbitrary and capricious. 26 Although we
might conclude de novo that Sgt. Austin’s family statements alone were
sufficient to establish his ADL loss, the highly deferential standard of review
that applies to this case precludes substituting our judgment for that of the
agency.     It was not arbitrary and capricious for the Army to rely on Dr.
Janusziewicz’s medical opinion instead of statements submitted by Sgt.
Austin’s family members.
       3.     Inadequate Notice Letter
       Finally, Sgt. Austin complains that Prudential—and thus, the Army—
did not adequately inform him of the reason that his claim was partially
denied. This complaint appears to be based on Prudential’s letter of March 14,
2011, which informed Sgt. Austin that his claim had been denied because his
“loss did not meet the standards for TSGLI,” but did not specifically mention
his failure to submit adequate medical records as the reason.
       Nothing in 38 U.S.C. § 1980A or 38 C.F.R. § 9.20 requires the Army to
inform claimants of the reason that their claims were denied. That said, the
TSGLI Procedural Guide does indicate that “[a]ll denial letters will contain the


       26See Weller v. United States, No. 14-68-SCR, 2014 WL 5320133, at *4 (M.D. La. Oct.
17, 2014) (“That the plaintiff can point to evidence in the record which supports his claim is
not dispositive.”).
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                                        No. 14-50880
reason for the denial and an explanation of the member’s appeal rights,
specifically what they need to provide in their appeal.” Prudential’s March 14
letter did not fulfill this requirement. In and of itself, however, this error alone
is not a sufficient basis for deeming the Army’s decision arbitrary and
capricious. 27 It is only when an agency publication has the force of binding law
that a failure to follow it might constitute flawed or illegal agency action. 28
Otherwise, the agency’s action is tested against the familiar arbitrary and
capricious standard. 29
       “In administrative law, as in federal civil and criminal litigation, there
is a harmless error rule.” 30            Sgt. Austin has failed demonstrate why
Prudential’s initial failure inform him of the details of this defect in his claim
was prejudicial, much less fatal. In fact, when the Army again rejected Sgt.
Austin’s claim on February 29, 2012, it did explain the problem; but Sgt. Austin
declined to resubmit his claim with the proper documentation. And, at oral
argument, his attorney could not confirm that any medical records from the
relevant time period even exist. It is clear that Prudential’s omission had no
significant impact on Sgt. Austin’s failure to obtain the remaining $75,000 in
benefits that he requested.


                                 III.    CONCLUSION
       Nothing in the administrative record indicates that the Army acted in
an arbitrary and capricious manner when it denied a portion of Sgt. Austin’s



       27 See Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 229 (5th Cir. 2006).
       28 See id. at 229–30; see also Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (per
curiam) (“But the Claims Manual is not a regulation. It has no legal force, and it does not
bind the SSA.”).
       29 Coliseum Square Ass’n, 465 F.3d at 230.
       30 United States v. Johnson, 632 F.3d 912, 930 (5th Cir. 2011) (quoting Nat’l Ass’n of

Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659–60 (2007)) (internal quotation
marks omitted).
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                                 No. 14-50880
claim for TSGLI benefits. We therefore AFFIRM the district court’s dismissal
of this action with prejudice.




                                     13
