Appellate Case: 17-1192 Document: 010110237577 Date Filed: 09/30/2019 Page: 1

Case No. 17-1192

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ANDY KERR, et al.,

Plaintiffs-Appellants,
v.
JARED POLIS, GOVERNOR
OF COLORADO, in his official capacity,
Defendant-Appellee.

On Appeal from
The United States District Court for the District of Colorado
No. 11-cv-01350-RM-NYW
Hon. Raymond P. Moore, United States District Judge

APPELLANTS’ RESPONSE TO GOVERNOR’S PETITION FOR

REHEARING EN BANC

DAVID E. SKAGGS
Dentons US LLP
1400 Wewatta Street, Suite 700
Denver, Colorado 80202
Email: david.skaggs@dentons.com
Telephone: (303) 634-4000
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HERBERT LAWRENCE FENSTER

SHANNON TUCKER
MARK NEUMAN-LEE
Covington & Burling LLP
850 10th Street NW
Washington, DC 20001
Email: hfenster@cov.com
srtucker@cov.com
mneumanlee@cov.com
Telephone: (202) 662-6000

MICHAEL F. FEELEY
SARAH M. CLARK
CARRIE E. JOHNSON
COLE J. WOODWARD
Brownstein Hyatt Farber Schreck LLP
410 17th Street, Suite 2200
Denver, Colorado 80202-4437
Email: mfeeley@bhfs.com
sclark@bhsf.com
cjohnson@bhsf.com
cwoodward@bhfs.com
Telephone: (303) 223-1100

JOHN A. HERRICK
2715 Blake Street, #9
Denver, Colorado 80205
Email: john.herrick@outlook.com
Telephone: (720) 987-3122

Attorneys for Plaintiffs-Appellants

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TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ................................................................................... iii

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

I. THE GOVERNOR HAS FAILED TO DEMONSTRATE THE

PANEL DECISION IS IN CONFLICT WITH THIS COURT’S
PRECEDENT AND DOES NOT ARGUE THIS CASE IS OF
EXCEPTIONAL IMPORTANCE. ..................................................................1

II. THE PANEL’S TREATMENT OF POLITICAL SUBDIVISION

STANDING DOES NOT CONFLICT WITH CITY OF HUGO BUT
RATHER DEFERS THE ISSUE FOR FURTHER
CONSIDERATION ON REMAND................................................................2

III. THE PANEL DECISION DOES NOT WARRANT EN BANC

REVIEW BECAUSE IT IS CONSISTENT WITH RUCHO AND
THIS COURT’S CONTROLLING PRECEDENT. .......................................4

A. The decision in Rucho provides no basis to revive the political

question doctrine as an issue here. ........................................................4

B. Repeated rulings in this case have decided that the political

question doctrine does not bar proceeding in this case and
together constitute the law of the case on the question of
justiciability. ..........................................................................................6

CONCLUSION ..........................................................................................................8

CERTIFICATE OF COMPLIANCE WITH RULE 32(A) .....................................10

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY

REDACTIONS ..............................................................................................11
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Page

ATTACHMENT A ............................................................................................... A-1

Pertinent Excerpts from Previous Decisions in this case, treating the

applicability of the Political Question Doctrine to the Guarantee Clause and
Enabling Act Claims ............................................................................................ A-1

Kerr v. Hickenlooper, 880 F.Supp.2d 1112, 1152, 1154-5 (D. C. Colo.

2012), Martinez, J. ................................................................................................ A-1

Kerr v. Hickenlooper, 744 F.3d 1156, 1181, 1182-83 (10th Cir. 2014),
Lucero, Circuit Judge ............................................................................................ A-2

Kerr v. Hickenlooper, 824 F.3d 1207, 1217-18 (10th Cir. 2016), Lucero,
Circuit Judge ......................................................................................................... A-2

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TABLE OF AUTHORITIES

Page(s)

Cases
Branson v. Romer,
161 F.3d 619 (10th Cir. 1998) .............................................................................. 2

City of Hugo v. Nichols,

656 F.3d 1251 (10th Cir. 2011) ...................................................................passim

Day v. Bond,
500 F.3d 1127 (10th Cir.2007) ............................................................................. 3

Entek GRB, LLC v. Stull Ranches, LLC,

840 F.3d 1239 (10th Cir. 2016) ............................................................................ 7

Hanson v. Wyatt,
552 F.3d 1148 (10th Cir. 2008) ............................................................................ 6

Initiative & Referendum Inst. v. Walker,

450 F.3d 1082 (10th Cir. 2006) ............................................................................ 3

Kelley v. United States,

69 F.3d 1503 (10th Cir. 1995) .............................................................................. 6

Kerr v. Hickenlooper,
824 F.3d 1207 (10th Cir. 2016) ............................................................................ 7

Kerr v. Hickenlooper,
744 F.3d 1156 (10th Cir. 2014) ....................................................................6, 7, 8

Kerr v. Hickenlooper,
880 F. Supp. 2d 1112 (D. Colo. 2012).............................................................. 6, 8

Largess v. Supreme Judicial Court for State of Mass.,

373 F.3d 219 (1st Cir. 2004) ................................................................................. 3

Luther v. Borden,
48 U.S. (7 How.) 1 (1849) .................................................................................... 6

New York v. United States,

505 U.S. 144 (1992) .............................................................................................. 6

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Page(s)

Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118 (1912) .......................................................................................... 5, 6

Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Cont’l

Carbon Co.,
428 F.3d 1285 (10th Cir. 2005) ............................................................................ 3

Reynolds v. Sims,
377 U.S. 533 (1964) .............................................................................................. 6

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .................................................................................passim

Sizova v. Nat’l Inst. of Standards & Tech.,

282 F.3d 1320 (10th Cir. 2002) ............................................................................ 4

Wheeler v. Hurdman,
825 F.2d 257 (10th Cir. 1987) .............................................................................. 4

Other Authorities
10th Cir. R. 35.1(A) ................................................................................................... 1

Fed. R. App. P. 35(a) ................................................................................................. 1

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INTRODUCTION
The Governor seeks en banc review of the Panel’s holding that the Political

Subdivision Plaintiffs “are not barred by standing requirements.” Op. 4. The

Governor contends the Panel’s holding conflicts with City of Hugo v. Nichols, 656

F.3d 1251 (10th Cir. 2011) and its treatment of political subdivision standing. In

fact, the holding comports with City of Hugo. In addition, the Governor reads an

invented holding into the dicta of Rucho v. Common Cause, 139 S. Ct. 2484 (2019)

that Guarantee Clause claims are per se nonjusticiable. The Rucho Court merely

observes that Guarantee Clause claims have “several times” proved to be

nonjusticiable. Id. at 2506. These strained grounds fail to clear the high threshold

required for en banc consideration. Therefore, the Governor’s Petition for

Rehearing En Banc is without merit and should be denied.

I. THE GOVERNOR HAS FAILED TO DEMONSTRATE THE PANEL

DECISION IS IN CONFLICT WITH THIS COURT’S PRECEDENT
AND DOES NOT ARGUE THIS CASE IS OF EXCEPTIONAL
IMPORTANCE.
En banc consideration is “disfavored” and an “extraordinary procedure.” 10th

Cir. R. 35.1(A); see also Fed. R. App. P. 35(a) (“An en banc hearing or rehearing

is not favored and ordinarily will not be ordered . . . .”). The Court may grant en

banc review for one of two reasons: “(1) en banc consideration is necessary to

secure or maintain uniformity of the court’s decisions; or (2) the proceeding

involves a question of exceptional importance.” Fed. R. App. P. 35(a).

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The Governor does not argue that the Panel’s holding implicates a question

of exceptional importance. Instead, the Governor asserts solely that the Panel’s

holding conflicts with City of Hugo and Rucho and, thus, impairs the uniformity of

the Court’s precedent. Accordingly, the Court should limit its inquiry to the only

reason alleged by the Governor – i.e., that the Panel’s holding conflicts with City of

Hugo and Rucho. As explained below, the Panel’s holding does not conflict with

either case, and the Governor has not demonstrated the criteria required for en banc

review.

II. THE PANEL’S TREATMENT OF POLITICAL SUBDIVISION

STANDING DOES NOT CONFLICT WITH CITY OF HUGO BUT
RATHER DEFERS THE ISSUE FOR FURTHER CONSIDERATION
ON REMAND.
The Panel’s holding does not conflict with City of Hugo. Rather, the Panel

decision respects City of Hugo, acknowledging that further consideration of

political subdivision standing will occur at the merits stage of this case.1

The Panel did not violate the political subdivision standing doctrine set forth

in City of Hugo because the Panel did not definitively determine whether the

Political Subdivision Plaintiffs have standing. Instead, the Panel held that, even if

the Governor’s reading of City of Hugo were correct, the district court erred in

dismissing the Political Subdivision Plaintiffs’ claims on a 12(b)(1) motion. Op.

1
Likewise, the Panel decision follows the Circuit’s other guiding political
subdivision standing case, Branson v. Romer, 161 F.3d 619 (10th Cir. 1998).
Op. 9-10.

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12. The Panel explained that this aspect of standing2 is inextricably intertwined

with the merits of the case:

[W]e cannot decisively determine if the political subdivision plaintiffs

here are excepted from the usual bar to political subdivision standing
because doing so would require impermissibly delving into the merits
of the case. Establishing who was intended to benefit from the
Enabling Act’s “republican in form” requirement necessarily begs the
question of what a “Republican Form of Government” is, which is the
issue ultimately to be resolved if any court ever succeeds in reaching
the merits of this case.

Id. (citing Largess v. Supreme Judicial Court for State of Mass., 373 F.3d 219, 226

(1st Cir. 2004); see also Day v. Bond, 500 F.3d 1127, 1137 (10th Cir.2007);

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006);

Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Cont’l Carbon Co.,

428 F.3d 1285, 1292 (10th Cir. 2005).

The Governor asserts that the question of whether TABOR violates the

Enabling Act is distinct from the question of whether the Political Subdivision

Plaintiffs have standing to challenge TABOR. But this assertion is conclusory and

ignores the Panel’s analysis. The Panel could not have found that the Enabling Act

fails to support political subdivision standing under City of Hugo without first

deciding what rights are protected by that Act and whether any such rights extend

to the Political Subdivision Plaintiffs here. Those questions are inextricable from,

2
The District Court determined that the Political Subdivision Plaintiffs
established Article III standing, a conclusion the Governor does not contest
on appeal. Op. 7.

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and essential to, a determination of this case on the merits. See Sizova v. Nat’l Inst.

of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) (citing Wheeler v.

Hurdman, 825 F.2d 257, 259 (10th Cir. 1987) (A jurisdictional question is

intertwined with the merits when that question “is dependent upon the same statute

which provides the substantive claim in the case.”); see also Op. 14-18. Thus, the

Panel decision did not issue a final ruling on standing that conflicts with City of

Hugo.

III. THE PANEL DECISION DOES NOT WARRANT EN BANC REVIEW

BECAUSE IT IS CONSISTENT WITH RUCHO AND THIS COURT’S
CONTROLLING PRECEDENT.
The United States Supreme Court’s recent decision in Rucho does not justify

en banc review. The brief dicta the Governor cites from Rucho does not contradict

this Court’s Guarantee Clause precedent, in which this Court has already held that

the political question doctrine does not bar this case as nonjusticiable.

A. The decision in Rucho provides no basis to revive the political

question doctrine as an issue here.
The Governor describes Rucho as “clarif[ying] the rule that claims under the

Guarantee Clause – like those brought here – do ‘not provide the basis for a

justiciable claim,’” Pet. 2 (quoting Rucho, 139 S. Ct at 2506), and calls this

language from Rucho a “recent holding” that “warrants this Court’s en banc

review,” id. 20. Notwithstanding the previous decision of this Court that the claims

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here are justiciable, the Governor insists that Rucho holds that all Guarantee

Clause claims are now per se nonjusticiable. Id. 21.

The Governor is wrong for at least two reasons. First, the Rucho Court’s

Guarantee Clause discussion is dicta; the decision in Rucho neither relies on nor

engages with the Guarantee Clause in its holding that there are no “constitutional

directive[s] or legal standards” to decide the constitutionality of the particular issue

of partisan gerrymandering. Rucho, 139 S. Ct. at 2508. Other than the one sentence

the Governor cites, there is no discussion of the Guarantee Clause in Rucho. Such a

passing mention hardly constitutes a holding.

Second, the Supreme Court’s opinion in Rucho did not state that Guarantee

Clause claims are never justiciable. The Governor selectively excerpts only a

portion of the Rucho Court’s sentence concerning Guarantee Clause claims. Read

in context, the Supreme Court’s statement was simply descriptive of the Supreme

Court’s past decisions: “This Court has several times concluded . . . that the

Guarantee Clause does not provide the basis for a justiciable claim. See, e.g.,

Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224,

56 L. Ed. 377.” Rucho, 139 S. Ct. at 2506. The plain language of the decision only

establishes that some number of specific Guarantee Clause claims the Court heard

were not justiciable. This sentence did not, contrary to the Governor’s argument,

determine that all claims based on the Guarantee Clause are per se nonjusticiable.

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This Court has previously applied the line of cases cited in Rucho to this

case, concluding in Kerr v. Hickenlooper, 744 F.3d 1156, 1173 (10th Cir. 2014),

that Pacific States and its progeny do not “preclude[] merits consideration in this

case.” See id. at 1176 (“[W]e reject the proposition that Luther [v. Borden, 48 U.S.

(7 How.) 1 (1849)] and Pacific States brand all Guarantee Clause claims as per se

nonjusticiable.”). The dicta in Rucho does not alter that analysis, and it is

consistent with prior decisions from this Court and the Supreme Court, which do

not support the claim that all Guarantee Clause claims are nonjusticiable. See, e.g.,

New York v. United States, 505 U.S. 144, 185 (1992) (“[P]erhaps not all claims

under the Guarantee Clause present nonjusticiable political questions.”); Reynolds

v. Sims, 377 U.S. 533, 582 (1964) (“[S]ome questions raised under the Guarantee

Clause are nonjusticiable.”); Hanson v. Wyatt, 552 F.3d 1148, 1163 (10th Cir.

2008) (quoting New York, 505 U.S. at 185); Kelley v. United States, 69 F.3d 1503,

1510 (10th Cir. 1995) (suggesting the belief that “the Guarantee Clause cannot be

challenged in the courts . . . may be incorrect”).

B. Repeated rulings in this case have decided that the political

question doctrine does not bar proceeding in this case and
together constitute the law of the case on the question of
justiciability.
As the Panel decision observes, “[t]his case has a long history.” Op. 4.

Recurring in that “long history” have been multiple rulings, first by the District

Court (Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo. 2012)) and twice by

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this Court (744 F.3d 1156 (10th Cir. 2014) and 824 F.3d 1207 (10th Cir. 2016)). In

each of these three rulings, the Governor’s assertion that the political question

doctrine is a bar to pursuing Plaintiffs’ claims was denied.

The pertinent portions of each of those decisions are set out in Attachment A

to this Response. While those decisions are not quoted at length here, they

demonstrate that this Court has considered, repeatedly and at length, the question

of whether this case is nonjusticiable and has found that question wanting. These

previous decisions are the law of this case regarding the applicability of the

political question doctrine:

Law of the case doctrine permits a court to decline the invitation to

reconsider issues already resolved earlier in the life of a litigation. It’s
a pretty important thing too. Without something like it, an adverse
judicial decision would become little more than an invitation to take a
mulligan, encouraging lawyers and litigants alike to believe that if at
first you don’t succeed, just try again.

Entek GRB, LLC v. Stull Ranches, LLC, 840 F.3d 1239, 1240 (10th Cir. 2016).3

The Governor’s claim that this case has somehow now become nonjusticiable is

simply wrong.

3
We recognize that “law of the case” jurisprudence encompasses a range of
precedential circumstances that do not lend themselves to easy or simple
description. See generally, Bryan A. Garner, Carlos Bea, Rebecca White
Berch, Neil M. Gorsuch, Harris L. Hartz, Nathan L. Hecht, Brett M.
Kavanaugh, Alex Kozinski, Sandra L. Lynch, William H. Pryor Jr., Thomas
M. Reavley, Jeffrey S. Sutton & Diane P. Wood, The Law of Justicial
Precedent 441-58 (2016). Nonetheless, the prior decisions in this case,

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Importantly, the District Court and this Court, in its first decision in this

case, gave careful analysis to the United States Supreme Court opinions that have

carved out of the political question doctrine space for consideration of Guarantee

Clause claims and noted that blanket assertions of nonjusticiability are suspect. See

744 F.3d at 1134-78; see also, 880 F. Supp. 2d at 143-53. Thus, the extensive

review by this Court and the District Court of the history and underlying

jurisprudence of the political question doctrine as applied to Guarantee Clause

claims should cabin the Governor’s casual treatment of Rucho.

CONCLUSION
The Panel’s opinion does not conflict with either City of Hugo or Rucho, and

the Governor falls far short of meeting the high threshold for warranting the

“disfavored” and “extraordinary” procedure of en banc review. For all the reasons

stated above, the Governor has failed to meet the criteria for a rehearing en banc

and his Petition should be denied.

rejecting the argument that the political question doctrine bars this
proceeding, are dispositive.

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Respectfully submitted this 30th day of September, 2019.

s/ David E. Skaggs
DAVID E. SKAGGS
Dentons US LLP
1400 Wewatta Street, Suite 700
Denver, Colorado 80202
Email: david.skaggs@dentons.com
Telephone: (303) 634-4000

HERBERT LAWRENCE FENSTER

SHANNON TUCKER
MARK NEUMAN-LEE
Covington & Burling LLP
850 10th Street NW
Washington, DC 20001
Email: hfenster@cov.com
srtucker@cov.com
mneumanlee@cov.com
Telephone: (202) 662-6000

MICHAEL F. FEELEY
SARAH M. CLARK
CARRIE E. JOHNSON
COLE J. WOODWARD
Brownstein Hyatt Farber Schreck LLP
410 17th Street, Suite 2200
Denver, Colorado 80202-4437
Email: mfeeley@bhfs.com
sclark@bhsf.com
cjohnson@bhsf.com
cwoodward@bhfs.com
Telephone: (303) 223-1100

Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B)(i) because this brief contains 1,957 words, excluding the parts of the

reply brief exempted by Fed. R. App. P. 32(f).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Office

Word 2010 in 14 point Times New Roman.

Date: September 30, 2019.

s/ David E. Skaggs
DAVID E. SKAGGS
Dentons US LLP

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CERTIFICATE OF DIGITAL SUBMISSION

AND PRIVACY REDACTIONS

I hereby certify that the foregoing APPELLANTS’ RESPONSE TO

GOVERNOR’S PETITION FOR REHEARING EN BANC as submitted in

Digital Form via the Court’s ECF system, is an exact copy of the written document

filed with the Clerk and has been scanned for viruses with Sophos Endpoint

Security and Control, Version number: 10.8.3.441 last update September 30, 2019,

and, according to the program, is free of viruses. In addition, I certify that all

required privacy redactions have been made.

Date: September 30, 2019.

s/ David E. Skaggs
DAVID E. SKAGGS
Dentons US LLP

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CERTIFICATE OF SERVICE

This is to certify that, on this 30th day of September, 2019, I have provided

service of the foregoing APPELLANTS’ RESPONSE TO GOVERNOR’S

PETITION FOR REHEARING EN BANC through the federal ECF filing

protocol to the following:

Eric R. Olson (eric.olson@coag.gov)

Megan Paris Rundlet (megan.rundlet@coag.gov)
Stephanie Lindquist Scoville (stephanie.scoville@coag.gov)
Kathleen L. Spalding (kit.spalding@coag.gov)
Michael Kotlarczyk (mike.kotlarczyk@coag.gov)
Office of the Colorado Attorney General
1300 Broadway, 10th Floor
Denver, CO 80203
Attorneys for Defendant-Appellee

Cody J. Wisniewski (cody@mountainstateslegal.com)

Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, CO 80227
Attorneys for Amici Curiae

Shannon Wells Stevenson (sstevenson@dgslaw.com)

DAVIS GRAHAM & STUBBS LLP
1550 Seventeenth Street, Suite 500
Denver, CO 80202
Attorneys for Amici Curiae

s/ Kay North
Kay North
113332298\V-1

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ATTACHMENT A

Pertinent Excerpts from Previous Decisions in this case, treating the applicability
of the Political Question Doctrine to the Guarantee Clause and Enabling Act
Claims

Kerr v. Hickenlooper, 880 F.Supp.2d 1112, 1152, 1154-5 (D. C. Colo. 2012),
Martinez, J.

In summary, there is no basis to conclude, at this stage of the proceedings,

that any of the six Baker tests are “inextricable from the case at bar.” 369
U.S. at 217, 82 S.Ct. 691. Thus, the Court concludes it is not appropriate to
dismiss Plaintiffs’ Guarantee Clause claim at this stage as non-justiciable
under the political question doctrine.
.....
For the Court’s purposes here, a fellow U.S. District Judge has stated the
rule clearly. In Bredesen v. Rumsfeld, 500 F.Supp.2d 752
(M.D.Tenn.2007), the Court stated that “it is well-settled that the political
question doctrine applies only to constitutional questions, not to questions of
statutory violations.” Id. at 762 (citing Japan Whaling ) . . . .

Earlier this year, the Supreme Court again reiterated the rule that federal
courts have jurisdiction to interpret federal statutes, even in politically
charged cases. [citing Zivotofsky ex rel. Zivotofsky v. Clinton, ––– U.S. ––––,
132 S.Ct. 1421, 182 L.Ed.2d 423 (2012)].

Given the sufficiently clear and recent case law authority (some of it binding
U.S. Supreme Court authority from the past three decades) that this Court
has jurisdiction to hear the Enabling Act claim, it would be error to dismiss
this case based only on the fact that Pacific States also involved an Enabling
Act claim. The Court therefore concludes that it has jurisdiction to hear
Plaintiffs’ Enabling Act claim under 28 U.S.C. § 1331, and as a consequence
Plaintiffs’ Enabling Act claim is not subject to dismissal.

Attachment A-1
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Kerr v. Hickenlooper, 744 F.3d 1156, 1181, 1182-83 (10th Cir. 2014), Lucero,
Circuit Judge

We thus affirm the district court's conclusion that the specific Guarantee
Clause claim asserted in this case is not barred by the political question
doctrine. . . .

We emphasize once again that this interlocutory appeal allows us to consider

only whether the legislator-plaintiffs have established Article III standing
and whether prudential standing jurisprudence or the political question
doctrine precludes consideration of their Guarantee Clause and Enabling Act
claims. Our answer to those questions completes our role at this stage of the
proceedings.

We AFFIRM the standing and political question rulings of the district court
and REMAND for further proceedings.

Kerr v. Hickenlooper, 824 F.3d 1207, 1217-18 (10th Cir. 2016), Lucero, Circuit
Judge

For similar reasons, we decline to address the political question doctrine. See
Kerr I, 744 F.3d at 1181. Because the district court erred in holding the
legislator-plaintiffs possess standing, we vacate its certified order. On
remand, if the district court concludes the remaining plaintiffs lack standing,
there will be no reason to consider the political question doctrine. See Tenet
v. Doe, 544 U.S. 1, 6 n.4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (federal
courts possess discretion “to choose among threshold grounds for denying
audience to a case on the merits” (quotation omitted)). If, however, the
district court holds that some other plaintiffs possess standing, the district
court may then consider other justiciability hurdles. In the interest of judicial
economy, we conclude that a remand for consideration of non-legislator
standing is the best course. (Emphasis added.)

Attachment A-2