interests of the individual IJs. 5 In Beck v. Department of Justice, for example, the Circuit upheld the redaction of the names of individual Drug Enforcement Agency agents from the agents’ disciplinary records produced in response to a FOIA request. 997 F.2d 1489, 1493 (D.C. Cir. 1993). Beck instructs that “[a] government employee has at least some privacy interest in his own employment records, an interest that extends to ‘not having it known whether those records contain or do not contain’ information on wrongdoing, whether that information is favorable or not.” Id. at 1494 (quoting Dunkelberger v. Dep’t of Justice, 906 F.2d 779, 782 (D.C. Cir. 1990)) (emphasis added). The D.C. Circuit acknowledged the public interest in the disclosure of records related to an agency’s procedures or overall performance, but “[found] no public interest to be balanced against the two agents’ obvious interest in the continued confidentiality of their personnel records.” Id. at 1492. The Supreme Court has also held that agencies may properly redact personnel information from disciplinary files requested under FOIA. In Department of Air Force v. Rose, the Court concluded that the content of Air Force disciplinary-hearing summaries “obviously contained information that would explain how the disciplinary procedures actually functioned and therefore were an appropriate subject of a FOIA request” but “the files should be redacted by deleting information that would identify the particular cadets to whom the summaries related.” Reporters Comm., 489 U.S. at 773–74 (citing Dep’t of Air Force v. Rose, 425 U.S. 352, (1976)). The Court noted that FOIA clearly protects “the kind of confidential personal data usually included in a personnel file” but does not insulate “nonconfidential matter . . . from disclosure merely because it
rules, on March 30, 2012, the Board issued an Order finding that the Camardas had violated Rule 2.1 and 6.5 of the CFP Board’s Code of Ethics. The sole basis for the CFP Board’s finding was supposedly based upon the CFP Board’s "conclusion" that Camarda Advisors and Camarda Consultants were functionally one “practice.” Therefore, the CFP Board held that Camarda Advisors cannot represent itself as providing fee-only services when Camarda Consultants also receives insurance commissions.
opposition to Plaintiff’s Motion for Discovery. First, the State Department argued that it did not have possession and control of the clintonemail.com server, and therefore could not be found to have improperly withheld any documents. Def.’s Opp. Pl.’s Mot. Discovery, Docket No. 49 at 14 (citing Reporters Committee for Freedom of the Press v. Kissinger, 445 U.S. 136, 139 (1980) (“even if a document requested under FOIA is wrongfully in the possession of a party not an ‘agency,’ the agency which received the document does not ‘improperly withhold’ those materials by its refusal to institute a retrieval action.”). Because the State Department did not possess or control Mrs. Clinton’s server at the time Judicial Watch’s FOIA request was received, the State Department argued it did not withhold any relevant documents. Def.’s Opp. Pl.’s Mot. at 14 (“Plaintiff’s concession that the State Department did not possess former Secretary
Washington, D.C., it alleges it is a federation of State Farm Bureaus including Florida, and thus has connections to Florida. AFBF Compl. ¶ 14. As noted in the Corps’ Motion to Transfer in New Hope, courts in the District of Columbia must carefully consider challenges to venue to “guard against the danger that a plaintiff might manufacture venue in the District of Columbia.” Sierra Club v. Flowers, 276 F. Supp. 2d 62, 65 (D.D.C. 2003) (internal citations omitted); Corps’ Transfer Motion at 9. Here, the similar situation of three of the four plaintiff groups as owning or leasing land in the Everglades Agricultural Area weighs heavily in favor of resolving this case in the forum where those lands are located and where the challenged agency memoranda are directed—the Southern District of Florida.
30. “Subject Claims” means any and all Claims against the Released Parties that arise out of or relate to the facts, acts, omissions, transactions, or occurrences that have been alleged to form a basis of liability, or that could have been alleged to form a basis of liability, in the Action related to the Covered Trusts (including facts, acts, omissions, transactions, or occurrences alleged to be, or that could be alleged to be, past, present, or future recurrences or continuations of the alleged breaches of contract or other duty at issue in the Action). For the avoidance of doubt, “Subject Claims” includes, but is not limited to, any and all Claims against the Released Parties that arise out of or relate to (i) documents missing or allegedly missing from loan files that were delivered to the Covered Trusts and/or the custodians for the Covered Trusts; (ii) breaches or alleged breaches of duty or of representations or warranties by the sellers of mortgage loans to the Covered Trusts; and/or (iii) breaches or alleged breaches of duty (whatever the source of such duty, be it contract, common law, statute, or other source) relating to (i) and (ii) by Defendants, or by the servicers, master servicers, or custodians of the mortgage loans in the Covered Trusts, related to the Covered Trusts.
The Nation’s Complaint identifies numerous treaties, statutes, and regulations that demonstrate the trust obligations of the UnitedStates. These treaties, statutes, and regulations are most succinctly stated in the Nation’s Complaint in numerous locations with specific focus on both accounting duties in treaties with the Nation and the requirements of the 1994 Indian Trust Fund Management Reform Act, 3 codified at 25 U.S.C. §§ 162a, 4011, and 4044. See inter alia Complaint [Dkt. No. 2-1] at ¶¶ 40, 44, 61, 63, 72-75, 77, 101, 118, 123, 139-154. The 1994 Act provides that “[t]he Secretary shall account for the daily and annual balance of all funds held in trust by the UnitedStates for the benefit of an Indian tribe . . . which are deposited or invested pursuant to The Act of June 24, 1938,” 25 U.S.C. § 4011(a) (emphasis added), and to produce monthly statements and an annual audit of all such funds, 25 U.S.C. § 4011(b). Accordingly, in this case “[t]he Nation seeks an Order from this Court compelling the UnitedStates to provide an accounting for all elements of the Trust Funds that are held or have been held by the UnitedStates qua trustee for the Nation, including without limitation those elements described as
101. RSHT also failed to provide adequate instruction in the ST courses. For example, when Smith began the mandatory five-week Body Structure and Function class, Mark Russel, an RSHT dean, told Smith and her classmates that they did not have an instructor. Classes were scheduled from 5:30 to 10:30 p.m. four days a week. Russel attended the first thirty minutes each day and assigned students chapters to read and homework to complete. Russel would read the correct answers to the homework from the answer key, but the students did not receive any actual instruction in the course material from Russel or anybody else. Smith was left to learn the material on her own.
On October 6, 2008, RCG and BBH entered a Standard Form Agreement Between Architect and Consultant, which stated the services that RCG would provide and its fees. Hall Aff. ¶ 13; Fishman Decl. ¶ 13. Under this agreement, RCG provided services in Maryland and North Carolina and was paid $89,120 by BBH. Hall Aff. ¶ 17. On April 6, 2009, BBH sent RCG a letter of
v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (“Article III ... confines … [the courts] to resolving real and substantive controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”). It is “well established that Article III requires a plaintiff seeking declaratory judgment to demonstrate a possibility of future injury which is of ‘sufficient immediacy and reality.’ ” Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1137 n.3 (D.C. Cir. 1989) (quoting Golden v. Zwickler, 394 U.S. 103, 109 (1969)).
114. In addition, when the Commission issues its preliminary award determinations for Plaintiff’s clients that are less than 30% and may have been the result of the Commission exercising its new discretion, Plaintiff will now need to (1) “request that the Office of the Whistleblower make available for [his] review the materials . . . that formed the basis of the Claims Review Staff’s Preliminary Determination”; (2) “request a meeting with the Office of the Whistleblower,” to determine whether and by how much the Commission reduced by clients’ awards because of their size; and (3) “contest the Preliminary Determination made by the Claims Review Staff by submitting a written response to the Office of the Whistleblower setting forth the grounds for [his] objection to . . . the proposed amount of an award,” arguing that the Commission should not have reduced the award amount because of its size. 17 C.F.R. §§240.21F-10(e)(1), 240.21F-11(e)(1).
The plaintiffs acknowledge that other members of this Court “have entered final injunctions using the new language the government proposes.” J. Report I at 2; see also Injunction and Judgment at 1-2, Barron Indus., Inc. v. Burwell, No. 13-cv-1330(KBJ) (D.D.C. Oct. 27, 2014), ECF No. 10 (entering permanent injunction akin to what the defendants have proposed in this case); Order at 1-3, Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-cv- 104(EGS) (D.D.C. Oct. 20, 2014), ECF No. 49 (same). But they implore the Court to not follow its colleagues’ lead, noting that those injunctions were entered in circumstances where the parties “consent[ed]” to the language. J. Report I at 2. The Court is not convinced that this procedural distinction calls for a different result. Although parties may consent to the scope of an
10. Although “[b]oth the Form U-4 and the Rule 12200 use the term ‘customer,’” neither “offers a thorough definition of the term.” 6 Dougherty, 118 F. Supp. 3d at 713. “Rule 12200 simply provides ‘that a customer shall not include a broker or dealer.’” Id. (quoting Abbar, 761 F.3d at 274). “‘[T]he word ‘customer’ must be construed in a manner consistent with the reasonable expectations of FINRA members.’” Id. (quoting Abbar, 761 F.3d at 274). “[A]n individual who opens an account with a FINRA member ‘has a reasonable expectation to be treated as a customer, whether or not goods or services are purchased directly from the FINRA member.’” Id. (quoting Abbar, 761 F.3d at 275). Pursuant to Rule 12200, a “customer” is “‘one who, while not a broker or dealer, either (1) purchases a good or service from a FINRA member, or (2) has an account with a FINRA member.’” Id. (quoting Abbar, 761 F.3d at 275); see also Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 741 (9th Cir. 2014) (stating that a “‘customer’ is a non-broker and non-dealer who purchases commodities or services from a FINRA member in the course of the member’s FINRA-regulated business activities, i.e., the member’s investment banking and securities business activities”); UBS Fin. Servs., Inc. v.
Plaintiff further asserts that the Department did not interpret § 1015c to “authorize the collection of information about students’ non-federal, private borrowing.” Pl.’s Supp. Brief at 14 n.6. This is simply incorrect, as the Department identified and responded to this interpretive question during rulemaking: “Another commenter cited [§ 1015c] as a reason why an institution should not be required to provide information on private or institutional loans.” 75 Fed. Reg. 66832, 66842 (Oct. 29, 2010). The Department’s conclusion that § 1015c did not prohibit the reporting rules shows that it considered and rejected the very position plaintiff puts forth now.
WHEREFORE, for the reasons stated above and in Plaintiff’s memorandum in support of this Motion, the Commission respectfully requests that this Court enter the Commission’s Proposed Supplemental Default Judgment Assessing Civil Monetary Penalties Against Defendants.
The proposed methods of service, particularly service through email and social networking websites, are not only permissible, but also are the most likely to provide the Defendants with notice of future filings and thus comport with due process. For instance, the Defendants have used email to communicate with consumers, the FTC, 8 and other third parties. See e.g., Plaintiff’s Memorandum in Support of TRO and PI, Ex. 6; Ex. 14, Att. A; Ex. 27, Att. J. And, although the Defendants have used an array of email addresses, the FTC believes it has at least one valid email address for each of the individual Defendants. Furthermore, Vikas Agrawal, Parmeshwar Agrawal, and Anuj Agrawal have Linkedin pages, which allow third parties to send messages directly to them. Similarly, all three Defendants have Facebook pages by which the FTC could serve the Defendants. 9
1. Boston Children’s Hospital has been threatened with litigation if it does not pay over $900,000 to Attachmate, Corp., the successor-in-interest to a Seattle-based software company from which the Hospital purchased software end-user licenses primarily in the late 1990s and early 2000s. The software in question, Reflection, is a terminal emulator program that the Hospital has not used since 2006, but for which the Hospital purchased thousands of licenses covering various versions when it was in use. Attachmate’s unreasonable demand is based on erroneous conclusions drawn from an audit that Attachmate undertook in 2014—nearly a decade after the Hospital stopped using the software. Attachmate billed the Hospital nearly a million dollars for this old software, including for15 years of “accrued interest” at 12%, and threatened to litigate if it refused to pay.
Holdings, Inc. v, A & L Sales, Inc., 346 F.3d 552, 563 (5th Cir. 2003); that default judgments, to which an entry of default is a necessary precursor, see New York Life Ins. Co., 84 F.3d at 141, are generally disfavored in the law and that there is a strong policy in favor of deciding cases on the merits, see Fortenberry v. Tex., 75 F. App’x 924, 926 n. 1 (5th Cir.2003); and that default judgment should not be granted on a claim, without more, that a defendant failed to meet a procedural time requirement, see Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000); Mason & Hanger-Silas Mason Co. v. Metal Trades Council, 726 F.2d 166, 168 (5th Cir. 1984). Rather, Plaintiff – which wants this Court to hold on to and decide this case on the merits – argues simply that the untimely filing means that the venue challenge is waived and the motion should be denied on that basis. See Dkt. No. 10 at 6-7. But, as explained above, the Court concludes that the venue challenge itself is not waived by any untimely filing of a motion raising the challenge, where Defendants filed that motion before Defendants filing any other Rule 12 motion and before answering. See F ED . R. C IV . P. 12(g)-(h).
In 2010, Mr. Burke wrote an article to be published in New Jersey Police Chief’s magazine. Port Authority has a policy requiring Port Authority’s Office of Public Affairs to approve articles written by employees before they are published. Mr. Burke provided an appellate division opinion wherein a similar requirement by the Waterfront Commission had been struck down by the Court as unconstitutional. Defendant refused to let Plaintiff publish his article.
Plaintiff acknowledges “that a portion of the responsive records relate to legitimate law enforcement investigations,” and are therefore properly withheld under Exemption 7(A). Pl.’s Cross-Mot. at 11. Nevertheless, Plaintiff argues that its FOIA requests also encompass “the targeting of individuals engaged in lawful First Amendment activities for which no legitimate law enforcement purpose exists.” Pl.’s Reply at 4; see also Pl.’s Cross-Mot. at 10-13. In other words, Plaintiff believes that WikiLeaks supporters are being targeted illegally, given that “[t]here is no criminal conduct, no security risk or violation of federal law, and no law violators to prosecute.” Pl.’s Cross Mot. at 14. Plaintiff points to the surveillance of Jacob Appelbaum and David House to support the likely existence of records that have “no legitimate law enforcement purpose.” 7 Pl.’s Reply at 4.
12. On or about February 10, 2014, Plaintiff Jerry Courson was searching the Internet for help in finding an appropriate drug rehabilitation facility for his wife, Plaintiff Christy Courson. 13. During his search, Jerry was referred to Fresh Start representative Josh Penn. Josh Penn recommended to Jerry that he admit Christy to Fresh Start for treatment. Josh Penn also referred Jerry to www.freshstart.net, a website for the program.