Case 1:19-cv-01242-CJN Document 11 Filed 08/16/19 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNSUCK DC METRO, )
)
Plaintiff, )
)
v. ) Civil Action No. 19-1242-CJN
)
WASHINGTON METROPOLITAN AREA )
TRANSIT AUTHORITY, )
)
and )
)
PAUL J. WIEDEFELD, in his official capacity )
as General Manager of the Washington )
Metropolitan Area Transit Authority, )
)
Defendants. )
____________________________________________)

DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO

DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Anthony T. Pierce
D.C. Bar. No. 415263
Rex S. Heinke
admitted pro hac vice
Caroline L. Wolverton
D.C. No. Bar 496433
AKIN GUMP STRAUSS HAUER & FELD, LLP
2001 K Street, N.W.
Washington, D.C. 20006
Phone: (202) 887-4107
Fax: (202) 887-4288
cwolverton@akingump.com

Attorneys for Defendants

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TABLE OF CONTENTS

INTRODUCTION ...................................................................................................................... 1

ARGUMENT .............................................................................................................................. 2

I. Unsuck Identifies No Basis For Jurisdiction Over Its Claims Under The
PARP, Administrative Procedure Act, Common Law, Or Declaratory
Judgment Act .................................................................................................................. 2

A. Unsuck Has Not Met Its Burden Of Establishing Standing To Sue As

An Unincorporated Nonprofit Association ................................................................. 2

B. Leave to Amend Should Be Denied As Futile ............................................................ 3

C. Unsuck Identifies No Authority For Treating WMATA As A Federal

Agency Subject To The APA ..................................................................................... 4

D. Eleventh Amendment Immunity Bars Unsuck’s APA and Common

Law Claims ............................................................................................................... 5

II. Unsuck Fails To State A Claim For Relief Under The First Amendment,
Administrative Procedure Act, Common Law, Declaratory Judgment Act,
Or Against Paul J. Wiedefeld ........................................................................................... 6

A. Unsuck Fails To State A First Amendment Claim ...................................................... 6

B. The PARP’s Adequate Remedy Precludes Unsuck’s APA And

Common Law Claims ................................................................................................ 7

C. Unsuck Agrees That The Declaratory Judgment Act Does Not Create
A Claim ..................................................................................................................... 8

D. Unsuck Identifies No Basis For Naming Paul J. Wiedefeld As A

Defendant .................................................................................................................. 9

III. Alternatively, Unsuck Fails To Demonstrate A Genuine Issue Of Material

Fact Precluding Summary Judgment On Its PARP Claims ............................................... 9

A. Defendants’ Stated Material Facts Have Been Admitted ............................................ 9

B. The Deliberative Process Privilege Protects the Withheld Survey

Questions ................................................................................................................. 10

C. The Withheld Survey Questions Are Also Protected Confidential

Business Information ............................................................................................... 14

D. The Qualified Commercial Privilege Also Shields The Withheld

Survey Questions ..................................................................................................... 16

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E. Defendants Are Entitled To Summary Judgment On Unsuck’s Claims

Concerning Fees And Other PARP Requests ........................................................... 18

CONCLUSION ......................................................................................................................... 19

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TABLE OF AUTHORITIES

Page(s)

Cases

Abtew v. U.S. Dep’t of Homeland Security,

808 F.3d 895 (D.C. Cir. 2015) ................................................................................. 10, 16, 17

Albra v. Bd. of Trs. Of Miami Dade Coll.,

296 F. Supp. 3d 181 (D.D.C. 2018) ............................................................................... 2, 5, 8

Allnet Commc’n Servs. v. Fed. Commc’ns Comm’n,

800 F. Supp. 984 (D.D.C. 1992) .......................................................................................... 15

Antonelli v. McHugh,
783 F. Supp. 2d 94 (D.D.C. 2011) ....................................................................................... 19

Ass’n of Am. R.Rs. v. United States,

371 F. Supp. 114 (1974) ........................................................................................................ 3

Baptist Mem’l Hosp.-Golden Triangle v. Leavitt,

536 F. Supp. 2d 25 (D.D.C. 2008) ................................................................................. 17, 19

Beebe v. WMATA,
129 F.3d 1283 (D.C. Cir. 1997) ............................................................................................. 6

Bd. of Trade v. Commodity Futures Trading Comm’n,

627 F.2d 392 (D.C. Cir. 1980) ............................................................................................. 15

Consumers Union of United States, Inc. v. Veterans Admin.,

301 F. Supp. 796 (S.D.N.Y. 1969) ....................................................................................... 15

Ctr. For Nat’l Sec. Studies v. Dep’t of Justice,

331 F.3d 918 (D.C. Cir. 2003) ............................................................................................... 8

* E.E.O.C. v. Swissport Fueling, Inc.,

No. 10-cv-2101, 2012 WL 1648416 (D. Ariz. 2012) ............................................................ 15

Elcon Enters., Inc. v. WMATA,

977 F.2d 1472 (D.C. Cir. 1992) ............................................................................................. 4

Fed. Open Mkt. Comm. v. Merrill,

443 U.S. 340 (1979) ............................................................................................................ 17

* Feinman v. F.B.I.,
680 F. Supp. 2d 169 (D.D.C. 2010) ....................................................................................... 4

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* Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019) ............................................................................................ 14, 15, 16

Food Mktg. Inst. Benson v. GSA,

289 F. Supp. 590 (W.D. Wash. 1968) .................................................................................. 16

Forsham v. Califano,
587 F.2d 1128 (D.C. Cir. 1978) ............................................................................................. 3

Gregg v. Barrett,
771 F.2d 539 (D.C. Cir. 1985) ............................................................................................... 6

* Heffernan v. Azar,
317 F. Supp. 3d 94 (D.D.C. 2018) ................................................................................. 12, 13

Hooker v. U.S. Dep’t of Health and Human Servs.,

952 F. Supp. 2d 194 (D.D.C. 2013) ..................................................................................... 17

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,

101 F.3d 145 (D.C. Cir. 1996) ............................................................................................. 10

Judicial Watch, Inc. v. Export-Import Bank,

108 F. Supp. 2d 19 (D.D.C. 2000) ....................................................................................... 15

* Kornegay v. AT&T,
579 F. Supp. 2d 34 (D.D.C. 2008) ................................................................................... 9, 10

Mackinac Tribe v. Jewell,

87 F. Supp. 3d 127 (D.D.C. 2015) ......................................................................................... 6

* Mapother v. Dep’t of Justice,

3 F.3d 1533 (D.C. Cir. 1993) ............................................................................................... 11

Maydak v. U.S. Dep’t of Justice,

254 F. Supp. 2d 23 (D.D.C. 2003) ....................................................................................... 15

Military Audit Project v. Casey,

656 F.2d 724 (D.C. Cir. 1981) ............................................................................................... 3

Morrison-Knudsen Co. v. Dep’t of the Army of U.S.,

595 F. Supp. 352 (D.D.C. 1984) .......................................................................................... 17

Nat’l Fed’n of Fed. Employees v. Cheney,

883 F.2d 1038 (D.C. Cir. 1989) ............................................................................................. 3

Nat’l Parks & Conservation Ass’n v. Morton,

498 F.2d 765 (D.C. Cir. 1974) ....................................................................................... 15, 16

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Office of Foreign Assets Control v. Voices in the Wilderness,

382 F. Supp. 2d 54 (D.D.C. 2005) ......................................................................................... 3

Petroleum Info. Corp. v. U.S. Dep’t of Interior,

976 F.2d 1429 (D.C. Cir. 1992) ........................................................................................... 11

Pitts v. D.C.,
177 F. Supp. 3d 347 (D.D.C. 2016) ..................................................................................... 19

Pohlman, Inc. v. Small Bus. Admin.,

No. 03-cv-1241, slip op. (E.D. Mo. Sept. 30, 2005) ............................................................. 16

Raines v. Byrd,
521 U.S. 811 (1997) .............................................................................................................. 3

Raygor v. Regents of Univ. of Minnesota,

534 U.S. 533 (2002) .............................................................................................................. 6

Rosenfield v. Dep’t of Health and Human Servs.,

No. 82-0850, 1983 U.S. Dist. LEXIS 20339 (D.D.C. Jan. 31, 1983) ...................................... 3

* Sabre Int’l Sec. v. Torres Advanced Enter. Sols., Inc.,

820 F. Supp. 2d 62 (D.D.C. 2011) ..................................................................................... 7, 9

SAE Prods. v. F.B.I.,

589 F. Supp. 2d. 76 (D.D.C. 2008) ........................................................................................ 4

Saunders v. WMATA,
359 F. Supp. 457 (D.D.C. 1973) ............................................................................................ 5

Seal & Co. v. WMATA,

768 F. Supp. 1150 (E.D. Va. 1991) ........................................................................................ 5

Sierra Club v. E.P.A.,

895 F.3d 1 (D.C. Cir. 2018) ................................................................................................... 2

Sisso v. Islamic Republic of Iran,

448 F. Supp. 2d 76 (D.D.C. 2006) ......................................................................................... 3

Steinberg v. Gray,
815 F. Supp. 2d 293 (D.D.C. 2011) ....................................................................................... 9

Taylor-Woodrow Intern. v. U.S. Dep’t of Navy,

No. 88-429R, 1989 WL 1095561 (W.D. Wash. Apr. 5, 1989).............................................. 17

Virginia State Bd. of Pharmacy v. Virginia Consumer Council,

425 U.S. 748 (1975) .............................................................................................................. 6

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* Wadelton v. Dep’t of State,

106 F. Supp. 3d 139 (D.D.C. 2015) ............................................................................... 12, 13

Washington v. Kessler,
880 F. Supp. 26 (D.D.C. 1995) .............................................................................................. 6

* White v. WMATA,
303 F. Supp. 3d 5 (D.D.C. 2018) ........................................................................................... 6

Williams v. Lew,
819 F.3d 466 (D.C. Cir. 2016) ........................................................................................... 3, 4

United States Constitution

First Amendment .......................................................................................................... 1, 6, 7, 19

Eleventh Amendment .............................................................................................................. 5, 6

Statutes

5 U.S.C. § 704............................................................................................................................. 8

42 U.S.C. § 1983 ......................................................................................................................... 9

D.C. Code § 9-11-9.01 ................................................................................................................ 5

D.C. Code § 29-1109 .................................................................................................................. 2

Rules

Fed. R. Civ. P. 12(b)(1) ..................................................................................................... 3, 5, 19

Fed. R. Civ. P. 12(b)(6) ................................................................................................. 7, 8, 9, 19

Fed. R. Civ. P. 17(b)(3) ............................................................................................................... 8

Fed. R. Civ. P. 56 ...................................................................................................................... 19

Other Authorities

WMATA Compact, available at

https://www.wmata.com/about/board/upload/Compact_Annotated_2009_final
.pdf........................................................................................................................................ 5

PARP, available at
https://www.wmata.com/about/records/public_docs/upload/PI-209-
203_Public-20Access-20to-20Records_FINAL-2001-2017-202019.pdf ....................... passim

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INTRODUCTION

Unsuck DC Metro’s opposition brief (ECF No 10, July 15, 2019) offers little more than

insincere rhetoric. It fails to engage meaningfully with most of Defendants’ arguments or to

identify any reason this case should continue.

Unsuck identifies no basis for this Court’s jurisdiction over its claims under the

Washington Metropolitan Area Transit Authority (“WMATA”) Public Access to Records Policy

(“PARP”), the Administrative Procedure Act (“APA”), or common law. Nor does Unsuck

identify any ground upon which a claim for relief could be granted based on the First

Amendment, the APA, common law, or against WMATA General Manager Paul J. Wiedefeld.

All of Unsuck’s claims, therefore, should be dismissed under Federal Rule of Civil Procedure

12.1

Even if the Court were to proceed beyond these fatal threshold flaws, summary judgment

would be warranted on Unsuck’s PARP claims. The Declaration of Lynn Bowersox (ECF No. 8-

1, June 11, 2019) demonstrates that WMATA properly withheld the customer satisfaction survey

questions based on the PARP Exemptions for the deliberative process privilege, protection of

confidential business information, and the qualified commercial privilege. Significantly, by

failing to controvert any of the facts supporting summary judgment that Defendants identified in

their Statement of Material Facts, Unsuck has admitted them. LCvR 7(h).

1
Unsuck states that it is not pursuing a claim under the Declaratory Judgment Act and
only seeks declaratory judgment as a remedy, so that claim is no longer in the case. Pl.’s Opp’n
3. Even if it were still in the case, the claim should be dismissed under Rule 12. Defs.’ Br. 7-9,
10 (ECF No. 8, June 11, 2019).
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ARGUMENT

I. Unsuck Identifies No Basis For Jurisdiction Over Its Claims Under The PARP,
Administrative Procedure Act, Common Law, And Declaratory Judgment Act

A. Unsuck Has Not Met Its Burden Of Establishing Standing To Sue As An

Unincorporated Nonprofit Association

WMATA’s opening brief explained that Unsuck lacks standing to bring claims based on

the PARP, the Declaratory Judgment Act, and state common law because it is an unincorporated

association that cannot sue under D.C. Law. Defs.’ Br. 7-8 (ECF No. 8, June 11, 2019) (citing

Sisso v. Islamic Republic of Iran, 448 F. Supp. 2d 76, 91 (D.D.C. 2006)). D.C. law provides that

only unincorporated nonprofit associations have standing to sue. D.C. Code § 29-1109(a) (“An

unincorporated nonprofit association shall have the capacity to sue and be sued in its own

name.”) (emphasis added).

Unsuck baldly asserts that its Complaint sufficiently pleads that it is a nonprofit. Pl.’s

Opp’n 3-4. However, those allegations, even construed liberally, do not plead that Unsuck is a

nonprofit association. Compl. ¶ 4 (ECF No. 1, Apr. 29, 2019). “The court need not accept

inferences drawn by plaintiffs [] if such inferences are unsupported by the facts alleged in the

complaint or amount merely to legal conclusions.” Albra v. Bd. of Trs. Of Miami Dade Coll.,

296 F. Supp. 3d 181, 185 (D.D.C. 2018). And Unsuck has not submitted an affidavit,

declaration, or any other evidence that it is a nonprofit. Sierra Club v. E.P.A., 895 F.3d 1, 20

(D.C. Cir. 2018) (“‘When [the petitioner’s] standing is not self-evident, . . . the petitioner must

supplement the record to the extent necessary to explain and substantiate its entitlement to

judicial review.’”) (quoting Sierra Club v. E.P.A., 292 F.3d 895, 900 (D.C. Cir. 2002)).

None of the cases Unsuck cites supports its contention that unincorporated associations

have standing to sue under the federal Freedom of Information Act (“FOIA”) and thus the PARP.

All were decided before the 2011 enactment of D.C. Code § 29-1109 providing only that an

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unincorporated nonprofit association has standing to sue. Military Audit Project v. Casey, 656

F.2d 724, 730 n.11 (D.C. Cir. 1981); Forsham v. Califano, 587 F.2d 1128, 1130 (D.C. Cir. 1978);

Office of Foreign Assets Control v. Voices in the Wilderness, 382 F. Supp. 2d 54, 56 (D.D.C.

2005); Rosenfield v. Dep’t of Health and Human Servs., No. 82-0850, 1983 U.S. Dist. LEXIS

20339, *1 (D.D.C. Jan. 31, 1983); Ass’n of Am. R.Rs. v. United States, 371 F. Supp. 114, 115

(1974) (cited in Pl.’s Opp’n 4).

Lastly, that Congress provided for original jurisdiction in the federal courts as well as the

courts of the District of Columbia, Virginia, and Maryland does not eliminate the requirement of

standing, contrary to Unsuck’s suggestion (at 4-5). E.g., Raines v. Byrd, 521 U.S. 811, 818

(1997) (“The standing inquiry focuses on whether the plaintiff is the proper party to bring this

suit.”); Nat’l Fed’n of Fed. Employees v. Cheney, 883 F.2d 1038, 1041 (D.C. Cir. 1989)

(“Standing focuses on the party and not on the issues sought to be adjudicated.”) (citing Flast v.

Cohen, 392 U.S. 83, 99 (1968)).

Unsuck has not met its burden of establishing standing to assert claims based on the

PARP (Count I), the Declaratory Judgment Act (Count I), or state common law (Count IV).

Those claims should be dismissed for lack of subject-matter jurisdiction under Fed. R. Civ. P.

12(b)(1). Sisso, 448 F. Supp. 2d at 91 (“D.C. law does not permit an unincorporated association

to sue or be sued directly.”).

B. Leave to Amend Should Be Denied As Futile

“‘Courts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.’” Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir. 2016)

(quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)) (original

alteration). If the Court concludes that Unsuck lacks standing, Unsuck requests that its manager

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become the named plaintiff. Pl.’s Opp’n 3 n.4. This would be futile because the manager would

not have standing.

“[A] plaintiff whose name does not appear on a FOIA request lacks standing to challenge

its denial, because she has not made a formal request within the meaning of the statute and

therefore ‘has not administratively asserted a right to receive [the documents] in the first place.’”

Feinman v. F.B.I., 680 F. Supp. 2d 169, 173 (D.D.C. 2010) (quoting McDonnell v. United States,

4 F.3d 1227, 1236-37 (3d Cir. 1993)); SAE Prods. v. F.B.I., 589 F. Supp. 2d. 76, 80 (D.D.C. 2008)

(a corporation could not pursue a FOIA action when the corporation’s agent, who submitted the

FOIA request, “did not adequately indicate that the FOIA Requests at issue [] were made on the

behalf of [the corporation].”). Unsuck’s manager has not made a PARP request and has not

administratively asserted a right to the withheld survey questions. The name of Unsuck’s

manager does not appear on its PARP request, and that request does not indicate that it was made

on behalf of anyone other than Unsuck. Decl. of Lynn Bowersox, Attach. A (Unsuck’s PARP

request).

The manager of Unsuck, consequently, lacks standing to pursue judicial review of

WMATA’s decision on Unsuck’s PARP request. Feinman, 680 F. Supp. 2d at 173. Unsuck’s

request for leave to amend the complaint therefore should be denied as futile. Williams, 819 F.3d

at 471.

C. Unsuck Identifies No Authority For Treating WMATA As A Federal Agency

Subject To The APA

Unsuck cites no legal basis for treating WMATA as a federal agency subject to the APA.

Elcon Enters., Inc. v. WMATA, 977 F.2d 1472 (D.C. Cir. 1992), on which Unsuck relies, Pl.’s

Opp’n 5, does not support its contention. In Elcon, the D.C. Circuit explicitly declined to decide

whether WMATA should be treated as a federal agency. Elcon Enters., 977 F.2d at 1480 (“In

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view of our conclusion [upholding WMATA’s procurement decision], it is unnecessary to resolve

the issue [of whether the APA and Federal Acquisition Regulations apply to WMATA]. It is

sufficient, for purposes of this appeal, to assume arguendo that WMATA is a federal agency.”).

As set forth in WMATA’s opening brief (at 9), WMATA is an interstate compact agency

and instrumentality of the District of Columbia, Maryland, and Virginia, e.g., D.C. Code § 9-11-

9.01; WMATA Compact § 4, available at

https://www.wmata.com/about/board/upload/Compact_Annotated_2009_final.pdf (last accessed

Aug. 16, 2019). It is not a federal agency subject to the APA. Seal & Co. v. WMATA, 768 F.

Supp. 1150, 1154 (E.D. Va. 1991) (“WMATA [] is not a federal agency. Rather, it is ‘an

instrumentality and agency of each of the signatory parties—the District of Columbia, Maryland,

and Virginia.’ Hence, it is not subject to the APA.”) (quoting WMATA v. One Parcel of Land, 706

F.2d 1312, 1314 (4th Cir. 1983)); Saunders v. WMATA, 359 F. Supp. 457, 460 (D.D.C. 1973)

(“Metro was created by Interstate Compact and is an agency only of its constituent jurisdictions.

The Compact was ratified by Congress, as required by the Constitution for all such Compacts

and was authorized and approved by Congress on behalf of the District of Columbia as a

signatory jurisdiction. But Plaintiff has offered nothing which indicates that Metro thereby

became a Federal agency.”).

Therefore, Unsuck’s APA claim (Count II) should be dismissed under Fed. R. Civ.

12(b)(1). Albra, 296 F. Supp. 3d at 188 (dismissing APA claim asserted against state entity for

lack of subject-matter jurisdiction).

D. Eleventh Amendment Immunity Bars Unsuck’s APA and Common Law

Claims

Unsuck offers no response to WMATA’s demonstration that the Eleventh Amendment

bars Unsuck’s APA claim as well as its claim under common law, Defs.’ Br. 7, other than its

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incorrect assertion that WMATA is a federal agency, Pl.’s Opp’n 5. As both the D.C. Circuit and

this Court have recognized, WMATA enjoys Eleventh Amendment immunity because Maryland,

Virginia, and the District of Columbia conferred their respective immunities on WMATA when

they created it. White v. WMATA, 303 F. Supp. 3d 5, 9 (D.D.C. 2018); Beebe v. WMATA, 129

F.3d 1283, 1287 (D.C. Cir. 1997) (citing Morris v. WMATA, 781 F.2d 218, 219 (D.C. Cir. 1986);

Hess v. Port Auth. Trans–Hudson Corp., 513 U.S. 30, 49–50 (1994)).2 Counts II (APA) and III

(common law) therefore should be dismissed. White, 303 F. Supp. 3d at 9.

II. Unsuck Fails To State A Claim For Relief Under The First Amendment,
Administrative Procedure Act, Common Law, Declaratory Judgment Act, Or
Against Paul J. Wiedefeld

A. Unsuck Fails To State A First Amendment Claim

Unsuck identifies no First Amendment right to receive the withheld customer satisfaction

survey questions. Its reliance on the willing speaker doctrine, Pl.’s Opp’n 6, is misplaced. The

willing speaker doctrine applies where there is someone who wishes to communicate information

and the government precludes a willing listener’s access to it. Gregg v. Barrett, 771 F.2d 539,

547 (D.C. Cir. 1985); Washington v. Kessler, 880 F. Supp. 26, 31 (D.D.C. 1995) (citing Virginia

State Bd. of Pharmacy v. Virginia Consumer Council, 425 U.S. 748, 756 (1975)) (both cited in

Pl.’s Opp’n 6). The doctrine thus depends on the presence of a willing speaker. Virginia State

Bd. of Pharmacy, 425 U.S. at 756 (“Freedom of speech presupposes a willing speaker”); Gregg,

2
Nor does the grant of jurisdiction in the federal courts and courts of the District of
Columbia, Maryland, and Virginia waive WMATA’s Eleventh Amendment immunity. Raygor v.
Regents of Univ. of Minnesota, 534 U.S. 533, 541 (2002) (to abrogate Eleventh Amendment
immunity, Congress “must make its intention to abrogate ‘unmistakably clear in the language of
the statute.’”) (quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)); Mackinac Tribe v. Jewell,
87 F. Supp. 3d 127, 140 (D.D.C. 2015) (“courts have long held that the mere fact that Congress
expressly permits a certain claim to be brought in federal court does not suffice to show that
Congress has abrogated the defense of sovereign immunity to that claim.”).

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771 F.2d at 547 (“The right to receive information, however, is not established in every case

where a person wishes to receive information. . . . Rather, the Court has indicated that the right to

receive information ‘presupposes a willing speaker.’”) (quoting Virginia State Bd. of Pharmacy,

425 U.S. at 756).

WMATA is not a willing speaker. It is the opposite. WMATA withheld the survey

questions and asserts its right under the PARP to continue to withhold them. That the PARP

provides for disclosure of certain WMATA documents, as Unsuck emphasizes, Pl.’s Opp’n 6, is

irrelevant. WMATA has refused to disclose the withheld survey questions because they are

exempt under the PARP. WMATA therefore is not “willing” to disclose them.

Nor does the First Amendment otherwise provide a right of access to the survey

questions. Defs.’ Br. 11-12. The Court therefore should dismiss Count III under Fed. R. Civ. P.

12(b)(6).

B. The PARP’s Adequate Remedy Precludes Unsuck’s APA And Common Law
Claims

Unsuck does not dispute that the PARP provides an adequate remedy. Pl.’s Opp’n 6

(asserting in response to Defendants’ adequate remedy argument that Unsuck’s APA claim is “in

the alternative”). It therefore concedes the point. Sabre Int’l Sec. v. Torres Advanced Enter.

Sols., Inc., 820 F. Supp. 2d 62, 71 (D.D.C. 2011) (a party’s failure to respond to an argument

concedes the issue) (citing CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-

83 (D.C. Cir. 1996); Maib v. F.D.I.C., 771 F. Supp. 2d 14, 20 (D.D.C. 2011)).

Unsuck is incorrect in suggesting Defendants concede that there is a federal common law

right of access with regard to WMATA documents.3 Pl.’s Opp’n 7. Defendants dispute the

3
Defendants’ argument (at 7-8) that Unsuck lacks standing as an unincorporated
association to sue based on non-federal common law is not an admission that Unsuck otherwise
has standing to pursue a non-federal common law claim, as Unsuck incorrectly suggests, Pl.’s
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existence of such a right because the PARP provides an adequate remedy. PARP § 9.3.1, 9.3.3,

available at https://www.wmata.com/about/records/public_docs/upload/PI-209-203_Public-

20Access-20to-20Records_FINAL-2001-2017-202019.pdf (last accessed Aug. 16, 2019).

Plaintiff cites no provision of the PARP suggesting that WMATA consented to claims based on a

federal common law right of access, nor is there such a provision in the PARP.

Because the PARP is an adequate remedy for Unsuck’s records request, Unsuck’s

“alternative,” Pl.’s Opp’n 8, claims under the APA and common law fail. 5 U.S.C. § 704 (the

APA applies to “[a]gency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court”) (emphasis added); Albra, 296 F. Supp. 3d at 187-

88 (adequate remedy foreclosed APA review); Ctr. For Nat’l Sec. Studies v. Dep’t of Justice, 331

F.3d 918, 936-37 (D.C. Cir. 2003) (FOIA “provides an extensive statutory regime for Plaintiffs to

request the information they seek.”)4 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599,

603-06 (1978), United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997)); Defs.’ Br. 12.

Therefore, the Court should dismiss Unsuck’s APA and common law claims (Counts II

and IV, respectively) under Rule 12(b)(6).

C. Unsuck Agrees That The Declaratory Judgment Act Does Not Create A
Claim

Although Count I of the Complaint is titled “Violation of PARP; Declaratory Judgment

Act,” Unsuck states that it is not pursuing a claim under that Act and only seeks declaratory

judgment as a remedy. Pl.’s Opp’n 3. Unsuck thus concedes that the Declaratory Judgment Act

Opp’n 7. Rather, it a reflection of Fed. R. Civ. P. 17(b). Fed. R. Civ. P. 17(b)(3) & (3)(A) (the
capacity of an unincorporated association to sue is determined by “the law of the state where the
court is located,” except for claims that seek to “enforce a substantive right existing under the
United States Constitution or laws.”).
4
As set forth in Defendants’ opening brief, WMATA interprets and applies the PARP
consistent with FOIA and federal practice. PARP § 1.

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does not create a claim for relief, as WMATA explained in its opening brief (at 10). Sabre Int’l

Sec., 820 F. Supp. 2d at 71. In any event, the claim should be dismissed under Fed. R. Civ. P.

12(b)(6). Defs.’ Br. 10.

D. Unsuck Identifies No Basis For Naming Paul J. Wiedefeld As A Defendant

Unsuck’s only response to Defendants’ argument that WMATA General Manager Paul J.

Wiedefeld should be dismissed pursuant to Rule 12(b)(6) is to assert that Wiedefeld is

responsible for all WMATA activities and to cite an inapposite 42 U.S.C. § 1983 case. Pl.’s

Opp’n 2 n.2. That Wiedefeld’s duties as general manager include oversight of WMATA’s

activities does not alter the salient point that the PARP provides a remedy only against WMATA.

PARP § 9.3.3. Section 1983 caselaw such as Steinberg v. Gray, 815 F. Supp. 2d 293, 299

(D.D.C. 2011), on which Unsuck relies, Pl.’s Opp’n 2 n.2, likewise has no bearing on the

remedies established by the PARP.

There is no basis for Unsuck’s claims against Wiedefeld, so they should be dismissed

under Fed. R. Civ. P. 12(b)(6).

III. Alternatively, Unsuck Fails To Demonstrate A Genuine Issue Of Material Fact

Precluding Summary Judgment On Its PARP Claims

A. Defendants’ Stated Material Facts Have Been Admitted

Unsuck’s Response to Defendants’ Statement of Material Fact (ECF No. 10-3, July 15,

2019) does not controvert any of Defendants’ stated material facts. Unsuck responds to each

stated fact as either “Undisputed” or “Plaintiff lacks knowledge to confirm or deny this

paragraph.” Id. Unsuck’s asserted lack of knowledge is insufficient to carry its burden of

demonstrating a genuine issue of material fact precluding entry of summary judgment.

Kornegay v. AT&T, 579 F. Supp. 2d 34, 36 (D.D.C. 2008) (“The non-moving party’s opposition .

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. . must consist of more than mere unsupported . . . denials.”) (citing Fed. R. Civ. P. 56(e)(2);

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

Consequently, these facts are admitted. LCvR 7(h) (“In determining a motion for

summary judgment, the Court may assume that facts identified by the moving party in its

statement of material facts are admitted, unless such a fact is controverted in the statement of

genuine issues filed in opposition to the motion.”); Kornegay, 579 F. Supp. 2d at 36-37 (where

plaintiff failed to “specifically contradict any facts set forth in [the defendant’s] Statement of

Undisputed Facts” or state any material disputed facts material to the motion, “the Court may

adopt the moving party’s statement of facts as undisputed”) (citing LCvR 7(h), LCvR 56.1,5

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir.

1996)).

B. The Deliberative Process Privilege Protects the Withheld Survey Questions

Unsuck is wrong in contending that the withheld survey questions are not predecisional

and deliberative. Ms. Bowersox’s Declaration as well as WMATA’s decisions on Unsuck’s

PARP request demonstrate that the questions satisfy both criteria of the deliberative process

privilege and are thus protected from disclosure under PARP Exemption 6.1.5.6

The D.C. Circuit explained in Abtew v. U.S. Dep’t of Homeland Security that “‘[a]

document is “predecisional” if it precedes, in temporal sequence, the “decision” to which it

relates.’” 808 F.3d 895, 898 (D.C. Cir. 2015) (quoting Senate of the Commonwealth of Puerto

Rico v. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)). “A document is deliberative if it is

5
LCvR 56.1 has since been “deleted as it repeats verbatim current LCvR 7(h).” LCvR
56.1 cmt.
6
As set forth in Defendants’ opening brief, the PARP’s exemptions are modeled on the
exemptions of FOIA. Defs.’ Br. 1 n.1 (comparing PARP and FOIA exemptions).

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‘a part of the agency give-and-take—of the deliberative process—by which the decision itself is

made.’” Id. at 899 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)); accord,

Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (“Material

is deliberative if it ‘reflects the give-and-take of the consultative process.’”) (quoting Coastal

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

The customer satisfaction survey questions were prepared before the WMATA Executive

Management Team’s decisions about service and operations improvements, so they are

predecisional. Bowersox Decl. ¶ 14; Defs.’ Statement of Material Fact (“SMF”) ¶ 20 (ECF No. 8

at 34-38, July 15, 2019); Pl.’s Resp. to SMF ¶ 20 (ECF No. 10-3) (not disputing fact).

As to the “deliberative” criterion, Ms. Bowersox explains that the survey questions are an

integral part of the give-and-take of WMATA’s process for making decisions in a “multitude” of

areas, “including scheduling, fare changes and customer service training.” Bowersox Decl.

¶¶ 14, 18-19; SMF ¶¶ 18, 21-22; Pl.’s Resp. to SMF ¶¶ 18, 21-22 (not disputing facts). Thus,

contrary to Unsuck’s contention, the questions themselves were “prepared in order to assist

[WMATA] decisionmaker[s] in arriving at [their] decision[s].” Petroleum Info. Corp., 976 F.2d

at 1434.

Even if the survey questions did not fit squarely within the description of “deliberative”

(which they do), they would still be protected under PARP 6.1.5 because “the [deliberative

process] privilege serves to protect the deliberative process itself, not merely documents

containing deliberative material.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir.

1993). Public disclosure of the questions would jeopardize the integrity of the survey and

thereby reduce the reliability of the survey results. Bowersox Decl. ¶ 20 (“If the customer

satisfaction survey questions were to become publicly known, survey respondents would be able

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to access, think about, and discuss the questions in advance of responding to the survey, and

thereby skew the survey results.”); SMF ¶ 23; Pl.’s Resp. to SMF ¶ 23 (not disputing fact).

Also, “third parties could seek to skew survey responses through sabotage, and thereby

undermine the integrity of the survey and the reliability of the results.” Bowersox Decl. ¶ 20;

SMF ¶ 23; Pl.’s Resp. to SMF ¶ 23 (not disputing fact). Disclosing the questions would lessen

their value to the decisionmaking process as a “key metric” that WMATA uses to determine

whether it is deploying its resources effectively. Bowersox Decl. ¶ 14; SMF ¶ 18; Pl.’s Resp. to

SMF ¶ 18 (not disputing fact). Further, disclosure would force WMATA to alter its deliberative

process in light of the reduced value of the customer satisfaction survey. Bowersox Decl. ¶ 21;

SMF ¶ 24; Pl.’s Resp. to SMF ¶ 24 (not disputing fact).

Unsuck’s efforts to distinguish this Court’s decisions in Heffernan v. Azar, 317 F. Supp.

3d 94 (D.D.C. 2018), and Wadelton v. Dep’t of State, 106 F. Supp. 3d 139 (D.D.C. 2015), Pl.’s

Opp’n 10, are unavailing. As an initial matter, it is noteworthy that Unsuck ignores E.E.O.C. v.

Swissport Fueling and Wadelton’s reliance on that decision. As discussed in WMATA’s opening

brief, Swissport Fueling recognized that “[w]here either the disclosure of the manner of selecting

or presenting facts would expose the deliberative process, or where facts are ‘inextricably

intertwined’ with ‘policy making processes,’ the material is [subject to the deliberative process

privilege].” No. 10-cv-2101, 2012 WL 1648416, at *16 (D. Ariz. 2012) (quoting Nat’l Wildlife

Fed’n v. United States Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988)) (original alterations).

Wadelton followed the reasoning of Swissport Fueling in concluding that questionnaires

used in an investigation were predecisional and deliberative because they “shed light on which

facts [the agency’s Office of Inspector General (OIG)] felt required development and the manner

in which OIG went about developing those facts.” Wadelton, 106 F. Supp. 3d at 154. Unsuck

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offers no response to WMATA’s point (at 15-16) that, like in Wadelton and Swissport Fueling,

the WMATA customer satisfaction survey questions “shed light” on which facts WMATA feels

require development to inform its decisions about improvements in service and operations and

the manner in which WMATA goes about developing those facts.

Furthermore, as discussed immediately above, Ms. Bowersox’s Declaration explains that

the survey questions WMATA’s are “inextricably intertwined” with WMATA’s “‘policy making

process’” for improvements to service and operations. Swissport Fueling, 2012 WL 1648416 at

*16 (quoting Nat’l Wildlife Fed’n, 861 F.2d at 1119). That the questionnaires in Wadelton were

sent to agency employees as part of an OIG investigation, as Unsuck emphasizes, Pl.’s Opp’n 10,

is a distinction without a difference. The relevant point is that disclosure of the questions asked

would reveal important aspects of the agency’s deliberative process. Wadelton, 106 F. Supp. 3d

at 154. Disclosure of the withheld WMATA survey questions likewise would reveal important

aspects of WMATA’s deliberative process. Bowersox Decl. ¶¶ 18-22; SMF ¶¶ 21-23; Pl.’s Resp.

to SMF ¶¶ 21-23 (not disputing facts).

Similarly, that Heffernan involved plans for an agency employee focus group and related

information, rather than survey questions, does not alter the salient point that the plans were a

part of the agency’s deliberative process for making decisions about agency services. Heffernan,

317 F. Supp. 3d at 130-31.

That the customer satisfaction survey questions are provided to the members of the public

who are selected to participate in the quarterly survey, as Unsuck also highlights, Pl.’s Opp’n 10-

11, does not lessen the importance of protecting them from further disclosure. While the

questions obviously must be disclosed to the survey participants, WMATA takes measures to

reduce the likelihood of further disclosure. Bowersox Decl. ¶ 17 (explaining that WMATA

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instructs its consultant Morpace to keep the questions confidential and conducts the survey by

telephone and closed online link to limit dissemination).

Lastly, that WMATA has issued a Request for Proposals (“RFP”) for a contract to

continue its efforts to gauge customer satisfaction and improve service and operations does not

undercut Ms. Bowersox’s explanation of why disclosing the survey questions would force

WMATA to alter its deliberative process, contrary to Unsuck’s contention, Pl.’s Opp’n 11. The

RFP excerpt quoted by Unsuck states that the customer satisfaction survey questionnaire “has

been finalized, but there is room for changes if needed or desired.” Id., Ex. B at 99. That

WMATA is open to considering changes to the current survey questions is not an alteration of

WMATA’s present survey methodology, i.e., asking the same questions each time the survey is

conducted so that responses serve as a benchmark against which to measure future performance,

Bowersox Decl. ¶ 18; SMF ¶ 21; Pl.’s Resp. to SMF ¶ 21 (not disputing fact). Nor does the

possibility that WMATA may decide to change a handful of questions from survey to survey,

Pl.’s Opp’n, Ex. B. at 99, alter the need to preserve the survey methodology so that WMATA

may continue to employ the deliberative process that it has found effective for making decisions

about improvements to service and operations.

Because the customer satisfaction survey questions are an important part of WMATA’s

deliberative process, PARP Exemption 6.1.5 protects the withheld questions from disclosure, so

Defendants are entitled to summary judgment on Unsuck’s PARP claim (Count I) challenging

the withholding.

C. The Withheld Survey Questions Are Also Protected Confidential Business

Information

The Supreme Court recently revised the standard for FOIA Exemption 4’s protection of

confidential business information. In Food Mktg. Inst. v. Argus Leader Media, the Supreme

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Court interpreted “confidential” for purposes of the exemption based on the “ordinary,

contemporary, common meaning” of the term when Congress enacted FOIA in 1966. 139 S. Ct.

2356, 2362 (2019). It held that the exemption covers business information if it is “customarily

kept private, or at least closely held, by the person imparting it.” Id. at 2363. Food Mktg. Inst.

also discussed “some assurance that [the information] will remain secret” by the party receiving

it, but left undecided whether both conditions must be satisfied for Exemption 4 to apply. Id. In

light of the clear “ordinary, contemporary, common meaning” of “confidential,” id. at 2362, the

exemption should apply to information so long as it is customarily kept private or closely held.

Id. at 2362-63.

In any event, both of the conditions addressed in Food Mktg. Inst. are satisfied here. Ms.

Bowersox explains that the survey questions are kept closely held. Bowersox Decl. ¶ 16; SMF

¶ 19; Pl.’s Resp. to SMF ¶ 19 (not disputing fact). And WMATA did more than provide

assurance to Morpace that the questions would be kept confidential; it instructed Morpace to

keep them confidential. Bowersox Decl. ¶ 17. Under Food Mktg. Institute, then, WMATA has

established that the survey questions fall within the protection of PARP Exemption 6.1.4. Food

Mktg. Inst., 139 S. Ct. at 2362-63.

That Morpace worked with WMATA in developing the questions does not make them

“information created within the government,” as Unsuck contends, Pl.’s Opp’n 12.7 Morpace

7
Further, the cases on which Unsuck relies in arguing that WMATA’s involvement in
drafting the survey questions precludes the exemption rely on the now-invalidated “substantial
competitive harm” requirement from Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765
(D.C. Cir. 1974): Bd. of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392, 404 (D.C.
Cir. 1980); see also Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 49 (D.D.C. 2003);
Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 28 (D.D.C. 2000); Allnet
Commc’n Servs.. v. Fed. Commc’ns Comm’n, 800 F. Supp. 984, 988 (D.D.C. 1992); Consumers
Union of United States, Inc. v. Veterans Administration, 301 F. Supp. 796, 803 (S.D.N.Y. 1969)
(all cited in Pl.’s Opp’n 12). Food Mktg. Inst. explicitly rejected the substantial competitive
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employed its scientific process in survey design in crafting them, making the survey its work

product as well as WMATA’s. Bowersox Decl. ¶ 16.

Unsuck’s argument that the exemption should not apply because Morpace is a contractor,

Pl.’s Opp’n 12, ignores the facts that are determinative under Food Mktg. Inst.—that Morpace

created the survey based on its expertise and keeps the survey confidential. Further, the two

cases Unsuck cites that would not apply the exemption to government contractors (both out-of-

circuit district court decisions, one more than fifty years old and the other unreported) cannot be

squared with the confidential business information standard set forth in Food Mktg. Inst. Benson

v. GSA, 289 F. Supp. 590, 594 (W.D. Wash. 1968); Pohlman, Inc. v. Small Bus. Admin., No. 03-

cv-1241, slip op. at 20 (E.D. Mo. Sept. 30, 2005) (cited in Pl.’s Opp’n 12).

Under the Supreme Court decision in Food Mktg. Inst., the survey questions constitute

confidential business information that is protected by PARP Exemption 6.1.4. Food Mktg. Inst.,

139 S. Ct. at 2362-63. For that reason as well, Defendants are entitled to summary judgment on

Unsuck’s challenge to WMATA’s decision to withhold the survey questions at issue (Count I).

D. The Qualified Commercial Privilege Also Shields The Withheld Survey

Questions

Unsuck’s argument against applicability of the qualified commercial privilege, like much

of its brief, fails to engage with WMATA’s argument that that privilege is an additional basis for

withholding the survey questions. WMATA’s opening brief explained that the qualified

commercial privilege encompassed by FOIA Exemption 5 includes protections applicable in civil

discovery, Defs.’ Br. 17 (citing United States v. Weber Aircraft Corp., 465 U.S. 792, 799-800

(1984)), and that because the survey questions constitute WMATA’s work product and

harm requirement that was adopted in Nat’l Parks & Conservation Ass’n and followed by these
courts. Food Mktg. Inst., 139 S. Ct. at 2364-66.

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intellectual property they are the sort of information that would be protected against disclosure in

civil discovery, id. (citing Bowersox Decl. ¶¶ 14, 16, 18-23). By not responding to WMATA’s

argument about the applicability of the protections available in civil discovery, Unsuck conceded

the point. Hooker v. U.S. Dep’t of Health and Human Servs., 952 F. Supp. 2d 194, 203 (D.D.C.

2013) (by failing to dispute issue, the plaintiff conceded it, and summary judgment should enter

for the defendant on FOIA claim); Baptist Mem’l Hosp.-Golden Triangle v. Leavitt, 536 F. Supp.

2d 25, 40 (D.D.C. 2008) (“A Party that fails to refute an opposing party’s argument on Summary

Judgment may be found to have conceded the point.”).

Unsuck incorrectly suggests that Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 360

(1979), limits the scope of the qualified commercial privilege to confidential commercial

information that is generated in the process of awarding a government contract. Pl.’s Opp’n 13.

Merrill recognized the applicability of Exemption 5 to such information but did not limit the

exemption to only that information. Merrill, 443 U.S. at 360 (“We accordingly conclude that

Exemption 5 incorporates a qualified privilege for confidential commercial information, at least

to the extent that this information is generated by the Government itself in the process of leading

up to awarding a contract.”); accord Morrison-Knudsen Co. v. Dep’t of the Army of U.S., 595 F.

Supp. 352, 354 (D.D.C. 1984) (following Merrill). The unreported out-of-circuit district court

decision on which Unsuck also relies, Taylor-Woodrow Intern. v. U.S. Dep’t of Navy, involved a

government contract, and thus the court there had no occasion to consider whether the privilege

might apply in circumstances such as are presented here. No. 88-429R, 1989 WL 1095561, *1

(W.D. Wash. Apr. 5, 1989) (cited in Pl.’s Opp’n 13 n.8).

In any event, disclosing the withheld survey questions would significantly harm

WMATA’s monetary interests, contrary to Unsuck’s contention (at 13-14). If the survey

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questions were made public and WMATA had to develop new questions for each survey, the cost

of conducting the quarterly surveys would increase by $1 to $2 million annually. Bowersox

Decl. ¶ 21; SMF ¶ 24; Pl.’s Resp. to SMF ¶ 24 (not disputing fact). If the disclosure led to the

questions asked in other WMATA surveys being disclosed, the costs of those surveys too would

increase. Bowersox Decl. ¶ 23. Also, disclosing the customer satisfaction survey questions

would harm WMATA’s commercial interests by impeding its ability to use the survey as a tool

for making decisions about improvements to its service and operations. Id. ¶ 22; SMF ¶¶ 23, 25;

Pl.’s Resp. to SMF ¶¶ 23, 25 (not disputing facts).

Accordingly, in addition to the deliberative process privilege under PARP Exemption

6.1.5 and the confidential commercial information protection under PARP Exemption 6.1.4, the

qualified commercial information privilege under PARP Exemption 6.1.5 protects the withheld

customer satisfaction survey questions. For that additional and independent reason, Defendants

are entitled to summary judgment on Unsuck’s PARP claim (Count I) challenging the

withholding.

E. Defendants Are Entitled To Summary Judgment On Unsuck’s Claims

Concerning Fees And Other PARP Requests

Unsuck’s opposition does not respond to Defendants’ argument for summary judgment

on Count I of the Complaint insofar as it challenges WMATA’s decision not to process Unsuck’s

additional pending PARP requests until Unsuck paid the fees associated with its request for the

customer satisfaction survey questions. Unsuck says it is no longer pursuing the claim. Pl.’s

Opp’n 2 n.1.

Unsuck offers no response to Defendants’ argument for summary judgment (at 19-21) on

Unsuck’s challenge to WMATA’s assessment of processing fees for the survey questions request

that is also asserted in Count I. Because Unsuck failed to dispute Defendants’ entitlement to

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summary judgment on those claims, summary judgment should be entered in Defendants’ favor

on both of them. Pitts v. D.C., 177 F. Supp. 3d 347, 372 (D.D.C. 2016) (treating argument as

conceded where footnote in opposition to summary judgment motion apparently abandoned it)

(citing Baptist Mem’l Hosp.-Golden Triangle, 536 F. Supp. 2d at 40); Antonelli v. McHugh, 783

F. Supp. 2d 94, 98 (D.D.C. 2011) (treating claim as conceded where plaintiff abandoned it after

defendant moved for summary judgment and plaintiff filed opposition and cross-motion).

CONCLUSION

For these reasons and those set forth in WMATA’s opening brief, none of Unsuck’s

claims is properly before the Court and all of its claims should be dismissed. Even if the claims

were properly before the Court, Defendants would be entitled to summary judgment because

WMATA responded to Unsuck’s request for the customer satisfaction survey consistent with the

PARP and applicable FOIA caselaw. Count I of the Complaint (PARP and Declaratory Judgment

Act) should be dismissed under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil

Procedure, or, alternatively, summary judgment should be entered in Defendants’ favor under

Rule 56. Count II (APA) should be dismissed under Rule 12(b)(1) and (6). Count III (First

Amendment) should be dismissed under Rule 12(b)(6). And Count IV (Common Law) should

be dismissed under Rule 12(b)(1) and (6).

Dated: August 16, 2019 Respectfully submitted,

/s/ Caroline L. Wolverton

Anthony T. Pierce
D.C. Bar. No. 415263
Rex S. Heinke
admitted pro hac vice
Caroline L. Wolverton
D.C. No. Bar 496433
AKIN GUMP STRAUSS HAUER & FELD, LLP
2001 K Street, N.W.
Washington, D.C. 20006

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Phone: (202) 887-4107

Fax: (202) 887-4288
cwolverton@akingump.com

Attorneys for Defendants

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