UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary Hopper

v. Civil No. 14-cv-450-LM Opinion No.

Aetna Life Insurance Company

O R D E R

In a previous order, document no. 20, the court granted

judgment in favor of Aetna Life Insurance Company (“Aetna”) on

Gary Hopper’s claim that Aetna, as the administrator of a long-

term disability (“LTD”) plan, violated the Employee Retirement

Income Security Act (“ERISA”),

, by

terminating his LTD benefits. That claim was one of four that

plaintiff asserted in his complaint. Because the parties did

not address plaintiff’s other three claims in the motions that

resulted its previous order, that order did not address those

claims. In a subsequent pleading, plaintiff gave up the claim

for breach of contract he had asserted in Count III. Currently

before the court are the parties’ motions for judgment on the

administrative record on Count II, which asserts a claim that

Aetna violated

(2), and Count IV, which requests a declaratory judgment that Hopper is entitled to LTD benefits.1

For the reasons that follow, Aetna’s motion is granted and

Hopper’s motion is denied.

I. Background

Until May of 2011, Hopper worked as a machinist for Ametek,

Inc. As an Ametek employee, he was covered by an LTD plan that

was both administered and insured by Aetna. Under that plan, an

employee with an impairment that prevents him from performing

his own job is entitled to two years of LTD benefits. After two

years, however, an employee is entitled to LTD benefits only if

he meets a stricter test, which requires an impairment that

precludes him from performing “any reasonable occupation.”

In 2011, Hopper was awarded LTD benefits for a 24-month

period running through August 23, 2013. That award was based

upon a determination that Hopper could no longer perform his

work as a machinist because he was suffering from, among other

things, eye problems and skin conditions. In January of 2013,

Aetna notified Hopper that on August 23, he would become subject

to the stricter “any reasonable occupation” test and that his

Aetna’s pleading is actually captioned: “Defendant’s 1

Memorandum of Law in Opposition to Plaintiff’s Motion for Judgment on Counts II & IV and in Support of Defendant’s Cross- Motion for Judgment on the Pleadings or, Alternatively, Summary Judgment.” The court construes Aetna’s pleading as a decision memorandum. See LR 9.4(c).

2 claim would be reviewed under it. On August 15, Aetna informed

Hopper that, as of August 23, he would no longer be eligible for

LTD benefits because he could perform the occupations of

machinist, bench assembler, and tool programmer. On that basis,

Aetna terminated Hopper’s benefits.

Hopper appealed that decision to Aetna. During the appeal

process, Aetna procured physician reviews of Hopper’s medical

records from Dr. Samuel Winn, an ophthalmologist, and Dr. Vesna

Petronic-Rosic, a dermatologist. Dr. Winn opined that Hopper’s

visual impairments disqualified him from working as a machinist,

as a bench assembler, or as a tool programmer. Dr. Petronic-

Rosic, in turn, when asked whether Hopper was capable of

performing any of those three occupations, gave the following

response:

No, he is not; the claimant cannot work in a dusty factory environment. All the options listed in the Labor Market Analysis [i.e., the occupations of machinist, bench assembler, and tool programmer] involve work in a centralized facility, i.e., factory environment. He is capable of sustained full-time employment in an office environment, but no such options are listed.

Administrative Record (hereinafter “AR”), at D 000276. In a

letter to Hopper’s counsel dated January 10, 2014, Aetna

overturned its decision to terminate Hopper’s LTD benefits and

explained:

[O]ur review has established that the employment options identified do not fit within all of [Mr.

3 Hopper’s] physical restrictions and limitations. As a result, your client’s claim has been returned to the claims operation team and will be re-opened by [the] Disability Benefits Manager (DBM) for review and benefit payment, effective August 23, 2013.

Doc. no. 13 at 13.

On January 29, Hopper heard from Aetna again. In what it

calls a “redenial letter,” AR, at D 001021, Aetna told Hopper

that while he was precluded from working as a machinist, bench

assembler, or tool programmer, he could work as an assignment

clerk. Accordingly, Aetna determined that Hopper was ineligible

for LTD benefits.

After announcing that decision, the letter also told Hopper

that Aetna would “review any additional information [he] care[d]

to submit,” and described the kinds of information he might

submit. AR, at D 000760. Aetna also told Hopper that: (1) he

was entitled to a review of its decision; (2) he could request

copies of documents related to his claim; and (3) if he did “not

agree with the final determination upon review, [he had] the

right to bring a civil action under section 502(a) of ERISA.”

Finally, Aetna described the steps Hopper would need to

take to obtain a review of its decision.

On February 14, Hopper’s counsel asked Aetna for “a copy of

the complete contract (policy) used in [Aetna’s] letter of

January 29, 2014.” AR, at D 000263. By letter dated February

25, Hopper’s counsel acknowledged receipt of a “copy of the

4 ‘Benefit Plan’ booklet.” AR, at D 000261. In addition, he

requested

a complete copy of whatever materials which in amy [sic] way are claimed to govern Aetna’s decision making process, procedural requirement[s] which bind the fiduciary and the employee, and the required reasonable procedures which must be exhausted before resorting to a judicial forum.

AR, at D 000261. Aetna’s Senior LTD Benefit Manager, Sammy

Maurice, responded:

We are in receipt of your letter dated 02/25/2014. It appears you are indicating that you have not received all of the documentation initially requested. We have sent you a copy of the claim file and we have sent you a copy of the LTD booklet. At this point I am still unclear as to what else you are requesting.

AR, at D 000766.

In letters dated April 15 and April 23, 2014, Hopper’s

counsel attempted to clarify his request. In the former, he

indicated he was “trying to ascertain the claim procedures which

were in effect at the time [Hopper’s] claim was originally made

or which may be [in] effect at this time.” AR, at D 000257. He

then explained his need for that information: “Before we can

resort to our judicial remedies, we must demonstrate that either

we have exhausted the administrative remedies in place as

required under the United States Department of Labor

regulations, or, such an appeal would be a useless gesture.”

In his subsequent letter, Hopper’s counsel elaborated:

5 This document [i.e., a copy of Aetna’s “claims procedures”] is essential for the claimant to ascertain the next step in obtaining the appropriate remedy. Without this information, we are unable to ascertain:

1- Whether the administrator has enacted and adopted claims procedures as required by the law.

2- Whether the claims procedures as adopted by the Administrator are consistent with the mandates of the law and are reasonable as required by the law.

3- The appropriate remedy for a self-reversal by the Administrator as was done in this case.

4- Whether the remedy for the self-reversal is voluntary or mandatory.

5- Whether the administrator has acted consistent[ly] with the mandates of the procedures as it may have adopted or they may exist.

AR, at D 000254. Counsel then reiterated his concern that

without the “claims procedures,” it was impossible to determine

the proper forum in which to contest Aetna’s decision to

terminate Hopper’s benefits. In the motion currently before the

court, Hopper says he never got the information he requested

from Aetna until March of 2015, five months after he filed this

suit. He does not, however, indicate what that information was,

what he might have ascertained from it, or how he was harmed by

hot having that information earlier.

6 Notwithstanding any possible confusion over how to

challenge Aetna’s decision to terminate his benefits, Hopper

appealed that decision, to Aetna, by letter dated July 25, 2014.

That letter describes Hopper’s visual impairments and explains

that they were the reason why Ametek terminated his employment.

The letter also notes a diagnosis of skin cancer that had spread

to Hopper’s neck. Finally, the letter refers to “some

additional medical documentation” that was enclosed with it.

AR, at D 000193. The letter does not, however, identify or

describe that documentation.

Shortly after Hopper filed his appeal with Aetna, he sent

Aetna a copy of a July, 30, 2014, letter from his treating

ophthalmologist, Dr. Erin Fogel. In her letter, Dr. Fogel

described Hopper’s eye problems and then concluded her letter

this way:

All of Gary’s chronic eye conditions have caused him extreme light sensitivity, poor depth perception, and overall poor vision. While he is functional for activities of daily life, it is very difficult for him to carry out any kind of work that would require good depth perception or require him to work in a dusty or dirty environment. He continues to require daily eye drops, oral Acyclovir, and frequent office visits for monitoring of his chronic eye problems.

AR, at D 000205.

The administrative record contains hundreds of pages of

internal documents generated by Aetna that chronicle its

handling of Hopper’s claim and his two appeals. In entries that

7 post-date Hopper’s July 25, 2014 appeal, Aetna’s internal

documents mention: (1) Dr. Petronic-Rosic’s physician review;

(2) Dr. Winn’s physician review; (3) office notes from Dr.

Fogel, Dr. Mark Quitadamo (who treated Hopper’s eczema), Dr.

Michael McLeod (a family practitioner), Dr. Michael Shead (an

ophthalmologist), Dr. Laura Jarmoc (an allergist), and Dr. H.

Singh (an oncologist). Aetna’s internal documents also include

this assessment:

There is a lack of medical evidence for impairment beyond the assessment provided by the peer reviewers [i.e., Drs. Petronic-Rosic and Winn]. The claimant subsequently underwent radiation treatment 02/07/14 through 03/05/14 for squamous cell carcinoma of the neck. This was discontinued due to significant skin reactions. No formal restrictions or limitations were submitted by the treating radiation oncologist for this timeframe.

AR, at D 001038.

Before rendering a decision on Hopper’s appeal, Aetna

obtained a physician review from another ophthalmologist, Dr.

Morris Osowsky. Dr. Osowsky reviewed 28 documents, including

the physician review authored by Dr. Winn and 22 documents

authored by Dr. Fogel. Dr. Osowsky had this to say about Dr.

Fogel’s July 30 letter: “The information provided by Dr. Fogle’s

[sic] report of 07/30/14 did not provide new information as to

any change or worsening of [Hopper’s] condition which would

uphold a finding of disability under the plan.” AR, at D

000188. In its referral to Dr. Osowsky, Aetna asked for a

8 detailed description of Hopper’s functional impairments and then

asked: “During the time period referenced above, would Mr.

Hopper’s eye impairments, if any, from his eye diagnoses

preclude him from working full-time in a clean office

environment?” AR, at D 000192. Dr. Osowsky responded: “Mr.

Hopper would be able to work full-time in a clean office

environment, however his eye impairments would preclude him from

performing activities requiring a binocular visual acuity better

than 20/40, depth perception, and bilateral peripheral vision.”

In September of 2014, Aetna upheld its decision to

terminate Hopper’s LTD benefits. Its decision rationale

discussed the information Hopper submitted in response to the

January 29 letter this way:

Claimant sent in documentation for his appeal on 07/29/2014 which did not provide any new information involving claimant’s eyes. The information was followed by a report dated 07/30/2014 by Erin Fogle [sic], Opthamologist [sic] which did not note any change in claimant[’]s eye conditions since 2013 and noted [that] claimant is functional for activities of daily living. The report of Dr. Fogle [sic] notes that it is very difficult for claimant to carry out any kind of work that would require good depth perception or to work in a dusty or dirty environment.

AR, at D 001067. Finally, the decision rationale explained that

Dr. Osowsky’s findings were presented to Aetna’s vocational

expert, who factored them into the determination that, with

9 certain accommodations for his visual impairments, Hopper could

work as an assignment clerk. This action followed.

Plaintiff initially sued in four counts. Defendant has

already been granted judgment on Count I. Plaintiff has given

up Count III, in which he asserted a claim for breach of

contract. See doc. no. 21 at 1-2. In Count II, plaintiff

claims that Aetna violated ERISA by terminating his benefits

without affording him the procedure he was due, and in Count IV,

he seeks a declaratory judgment that he is entitled to LTD

benefits.

II. Discussion

Each party argues that it is entitled to judgment on the

record on each of the two remaining claims. The court begins

with Count II and then turns to Count IV.

A. Count II

In his complaint, Hopper frames Count II in the following

way:

AETNA, in violation of

[(2)], wrongfully failed to afford a reasonable opportunity to Hopper for a full and fair review by the appropriate named fiduciary of the decision denying his claim.

Doc. no. 1 at ¶ 56. In his motion for judgment on the record,

Hopper splits his § 1133(2) claim in two. First, he claims that

Aetna “deprived [him] of pre-judicial process, as required by

10 law.” Doc. no. 23 at 4. Second, he claims that Aetna “failed

to provide a review that took into account all comments,

documents, records, and other information submitted by the

claimant and failed to engage in a meaningful dialogue with

[him] regarding [his] claim.” Id. at 10 (emphasis in the

original).2 In this section, the court considers Hopper’s two §

1133(2) claims in turn, but begins by describing the relevant

law.

1. Relevant Law

Under the heading “Claims procedure,” section 1133 of

chapter 29 of the U.S. Code provides:

In accordance with regulations of the Secretary, every employee benefit plan shall--

. . . .

(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

Plaintiff’s reference to a “meaningful dialogue” would 2

appear to be extraneous. That phrase is drawn from caselaw applying regulations that effectuate the notice requirement imposed by

(1). See, e.g., Booton v. Lockheed Med. Benefit Plan,

(9th Cir. 1997). Here, however, Hopper bases his claim on the “full and fair review” requirement imposed by § 1133(2), not the § 1133(1) notice requirement. In his memorandum of law, he refers to decisions in cases brought under

(1) and to parts of the regulation that effectuates that statute, but his complaint cannot be reasonably construed as asserting anything other than a § 1133(2) claim.

11 Section 1133(2) is effectuated by

(h),

which is titled “Appeal of adverse benefit determinations.”

That regulation provides, in general, that

[e]very employee benefit plan shall establish and maintain a procedure by which a claimant shall have a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under which there will be a full and fair review of the claim and the adverse benefit determination.

(h)(1). The regulation further provides:

[T]he claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a claim and adverse benefit determination unless the claims procedures--

. . . .

(iii) Provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits. . . .;

(iv) Provide for a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.

(h)(2).

2. Deprivation of Pre-Judicial Process

In his first claim, plaintiff asserts that Aetna violated

(2) when it did not provide him with the “claims

procedures” he requested in April of 2014, as required by

(h)(2)(iii). Aetna attacks plaintiff’s first

12 claim from several angles, but is entitled to judgment in its

favor because even if Hopper can establish a technical violation

of § 2560.503-1(h)(2)(iii), he has failed to demonstrate

prejudice.3

In a case involving a claim that an ERISA plan

administrator had failed to provide a claimant with information,

as required by

(h)(iii), the court of

appeals held that “as a basis for a remand, the district court

correctly required [the claimant] to demonstrate a connection

between Hartford’s failure to disclose the complete file and her

inability to receive from the plan administrator a full and fair

review of her claim to benefits.” DiGregorio v. Hartford

Comprehensive Emp. Benefit Serv. Co.,

(1st Cir.

3 Aetna also argues that Hopper waived his procedural objections to its decision by failing to raise them in his first motion for judgment on the record. In addition, Aetna argues that Hopper’s request for judgment on Count II is in reality an untimely request for reconsideration of the court’s ruling on Count I because: (1) the principal relief that Hopper seeks in Count II is an award of benefits; (2) that is the same relief Hopper sought in Count I; and (3) the proper relief for a claim under

is a remand, not an award of benefits. The court agrees that, generally speaking, the proper relief for a violation of § 1133 is a remand. See Brown v. J.B. Hunt Transp. Servs., Inc.,

(8th Cir. 2009). However, in Count II, Hopper also asks for “all other relief as the facts and law may provide.” Doc. no. 1 at ¶ 57. That request surely encompasses relief in the form of a remand. Thus, Hopper’s prayer for relief is sufficient to shield Count II from Aetna’s argument that Hopper is merely seeking reconsideration of the court’s ruling that he is not entitled to an award of benefits.

13 2005). As for the contours of that requirement, Hopper “must

show prejudice in a relevant sense.”

(quoting Recupero v.

N.E. Tel. & Tel. Co.,

(1st Cir. 1997)). In

DiGregorio, to show prejudice, the claimant was obligated to

“show that as a result of Hartford’s failure to disclose her

complete claim file, she did not understand the evidence that

she had to provide to dispute Hartford’s conclusion that she was

not entitled to benefits.”

.

In response to Aetna’s prejudice argument, Hopper first

suggests that prejudice may not always be required. There may

be circumstances in which prejudice is not required, but Hopper

does not explain what those circumstances might be, or why

prejudice would not be required in this case. Turning to the

rationale behind the prejudice requirement, the typical remedy

for a violation of

is a remand to the plan

administrator. See Brown,

. That remedy, in

turn, allows a plan administrator to correct its error and undo

the harm a claimant has suffered as a result of that error. If

a claimant has not been prejudiced by a plan administrator’s

procedural error, remand would seem to be a hollow gesture,

incapable of providing any real relief. Thus, prejudice would

seem to be an essential element of any claim under § 1133.

But, even if prejudice is not always required, the court

can see no reason why, under the circumstances of this case,

14 plaintiff would not need to show prejudice. He says he has.

The court does not agree.

In the motion currently pending before the court, Hopper

describes the harm he suffered this way:

The actions of AETNA, in this case, completely undermined the claimant’s ability to preserve and present his case. He needed, not an attorney, but a clairvoyant to ascertain whether Aetna’s particular plan was governed by de novo, or ‘substantial deference’ standard on initial judicial appeal. He was left to consult a soothsayer as to whether he should retain an expert of his own, when and in what exact field. The alternative was fiscally crushing, and logistically impossible. It required the exhaustion of his precious resources which well exceeded the amounts to which he would be entitled under the plan, if approved.

Doc. no. 23 at 6. In response to Aetna’s argument that he

cannot show prejudice, Hopper elaborated:

The lack of a meaningful dialogue between AETNA and Mr. Hopper left him in the dark about the contour, and procedural landscape governing the treatment of his claim. Not having the specific policies and procedures governing the claims and appeals process limited Mr. Hopper’s tactical and strategic options during the appeals process. When he successfully appealed the first adverse determination, he had no notice that AETNA could then take it upon itself to reverse its reinstatement of Mr. Hopper’s LTD benefits due to the lack of notice of the specific policies and procedures governing the process. As such, Mr. Hopper was clearly prejudiced by AETNA’s failure to provide a full and fair review.

Doc. no. 26 at 5. Hopper’s attempt to demonstrate prejudice is

long on generalities but short on specifics.

15 To demonstrate prejudice, Hopper must explain how his

appeal of the January 29 redenial might have been successful if

he had been able to use the information that Aetna withheld from

him. See DiGregorio, 923 F.2d at 17. But, despite now having

the information he asked Aetna for in April of 2014 – which he

does not appear to identify in his pleadings – Hopper does not

say how he could have used that information to mount a

successful appeal. Specifically, he does not: (1) explain how

knowing the standard of review on an action in this court would

have materially enhanced his ability to appeal the January 29

decision to Aetna; (2) explain how a lack of information about

Aetna’s internal procedures detrimentally limited his tactical

and strategic options; or (3) identify anything in the

information that Aetna belatedly provided that would have

supported an argument, in his appeal from the January 29

decision, that Aetna was procedurally barred from reconsidering,

sua sponte, the favorable decision that the January 29 decision

replaced.

Moreover, the record shows that: (1) Hopper knew enough

about Aetna’s appeal process to file an appeal of the initial

decision to discontinue his LTD benefits; (2) Aetna’s January 29

redenial letter clearly described the appeal process; (3) Hopper

was able to file an appeal of Aetna’s redenial; and (4)

notwithstanding Hopper’s claimed lack of information on Aetna’s

16 appeal process, his appeal of the redenial was resolved against

him on the merits, not because of some procedural error he could

have avoided with the benefit of the information he was seeking

from Aetna. In short, Hopper is in the same position as the

claimant in DiGregorio who lost on her ERISA claim in court

because she had “not demonstrated that [the plan

administrator’s] failure to disclose her complete file upon

request prevented her from submitting evidence necessary to

dispute the denial of her claim,” and had not “shown that the

refusal to disclose the complete claim file had any impact on

her meaningful participation in the internal review process or

otherwise impaired her ability to prepare an informed response

to [the plan administrator’s] decision.” 923 F.2d at 17

(quoting Palmer v. Univ. Med. Grp.,

(D.

Or. 1998)) (internal quotation marks and brackets omitted).

Because Hopper cannot show that he was prejudiced by his

lack of information about Aetna’s appeal process, Aetna is

entitled to judgment on Hopper’s § 1133(2) claim to the extent

that claim is based upon an asserted violation of

(h)(2)(iii).

17 3. Failure to Provide Adequate Review

In his second claim, plaintiff asserts that Aetna violated

(2) by failing to provide a review that took

into account all the information he submitted in support of his

claim, as required by

(h)(2)(iv). More

specifically, he faults Aetna for relying solely upon the review

provided by Dr. Osowsky, and criticizes Dr. Osowsky’s review as

being limited to a small portion of the medical record.4

To begin, Hopper’s focus on the scope of Dr. Osowsky’s

review seems to miss the mark. While Hopper criticizes Dr.

Osowsky’s review for being limited to only 28 documents, he does

not identify any other information that Aetna should have

provided Dr. Osowsky, but did not. Necessarily, he does not

indicate how Dr. Osowsky’s findings might have been different

had he reviewed the information that Aetna did not provide him.

Finally, the only piece of information Hopper specifically

identifies in his memorandum of law, Dr. Fogel’s July 30 letter,

is mentioned in both Dr. Osowsky’s review and Aetna’s decision

4 Hopper contends that Dr. Osowsky reviewed only 28 documents out of an administrative record that includes at least 1000 pages. The administrative record is 1306 pages long. But it includes hundreds of pages of plan descriptions, internal claim-review documents, and other material that would have been entirely irrelevant to Dr. Osowsky’s review. Thus, the court is not moved by Hopper’s characterization of the record.

18 rationale. Clearly, Aetna did take that information into

account.

In addition to criticizing the scope of Dr. Osowsky’s

review, Hopper also claims that Aetna violated

(2) by basing its final decision exclusively on Dr.

Osowsky’s review and, consequently, failing to take into account

all of the information he submitted to Aetna. Again, Hopper

stumbles on the prejudice requirement by failing to specifically

identify information Aetna did not take into account and explain

how consideration of that information might have led to a

favorable decision. But, there is an even larger problem with

Hopper’s claim. He asserts that Aetna relied exclusively on Dr.

Osowsky’s review, but the administrative record demonstrates

otherwise. Aetna’s internal documents show that when Aetna

reviewed its redenial, after Hopper filed his appeal, Aetna took

into account the physician reports by Drs. Petronic-Rosic and

Winn as well as approximately 20 medical records authored by six

different physicians. See AR, at D 001034 – D 001041. Thus,

the court cannot accept the factual premise for Hopper’s claim

that Aetna violated

(2). Finally, the court

notes that Hopper praises Aetna’s handling of his first appeal,

and points with approval to Aetna’s commissioning of and

reliance upon reports from Drs. Petronic-Rosic and Winn. The

19 record demonstrates that Aetna also considered those reports

when handling Hopper’s second appeal.

In sum, Hopper has identified no evidence that Aetna

failed to take into account, and has identified no prejudice

that resulted from Aetna’s alleged violation of

(h)(2)(iv). Accordingly, the requirement described in

that regulation provides no basis for a determination that Aetna

failed to provide Hopper with a full and fair review of his

appeal, as required by

(2). Thus, to the extent

that Hopper’s § 1133(2) claim is based upon an asserted

violation of

(h)(2)(iv), Aetna is entitled

to judgment on that claim.

B. Count IV

In Count IV, Hopper claims that he “is entitled to a

declaratory judgment against AETNA for all past and future

benefits due [him] under the policy, plus pre- and post-judgment

interest; all reasonable attorney’s fees; costs; and all other

relief as the facts and law may provide.” Doc. no. 1 at ¶ 65.

He does not address Count IV in his motion for judgment on the

record. Aetna argues that plaintiff has abandoned Count IV.

Plaintiff does not address that argument in his reply brief. In

any event, plaintiff advances no legal theory apart from those

underlying the claims asserted in Counts I, II, and III, that

would entitle him to the declaratory judgment he seeks in Count

20 IV. Thus, Count IV is entirely duplicative of Counts I, II, and

III. Because Aetna is entitled to judgment on the claims

asserted in Counts I, II, and III, Aetna is also entitled to

judgment on Count IV.

III. Conclusion

For the reasons described above, Hopper’s motion for

judgment on the record, document no. 23, is denied, and Aetna’s

motion for judgment on the record, document no. 24, is granted.

The clerk of the court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 16, 2016

cc: Byrne J. Decker, Esq. Scarlett L. Freeman, Esq. John Houston Pope, Esq. Tony F. Soltani, Esq.

21