Conner v. United States ( 2022 )

In the United States Court of Federal Claims
No. 21-2057
(Filed: 21 June 2022)
NOT FOR PUBLICATION
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HARRY J. CONNER, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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Harry J. Conner, pro se, of Memphis, Tennessee.
Patrick Angulo, Trial Attorney, Commercial Litigation Branch, Civil Division, with
whom were Elisabeth M. Hosford, Assistant Director, Patricia M. McCarthy, Director, Brian M.
Boynton, Acting Assistant Attorney General, U.S. Department of Justice, all of Washington,
D.C., for defendant.
ORDER
HOLTE, Judge.
This case is Mr. Conner’s third attempt to sue the government for allegedly exacting his
money and property. Plaintiff is the designated beneficiary on the Federal Employee’s Group
Life Insurance policy of his deceased mother, Mary W. Conner-Nelson. Plaintiff alleges the
government fraudulently refused to pay him the full sum due from the policy and therefore
unlawfully took his property. Plaintiff claims he is entitled to $2,000,000 plus interest under the
policy and asks the Court to order the correction of his mother’s government employment
records. The government moved to dismiss plaintiff’s claims for lack of subject matter
jurisdiction, for failure to bring his complaint within the Court’s six-year statute of limitations,
and under the doctrine of res judicata. For the reasons discussed below, the Court: (1) grants
plaintiff’s motion to proceed in forma pauperis; (2) grants the government’s motion to dismiss;
and (3) dismisses plaintiff’s complaint.
I. Background
A. Factual History
The Court draws the following facts from plaintiff’s filings, “accept[ing] all well-pleaded
factual allegations as true and draw[ing] all reasonable inferences in [the nonmovant’s] favor.”
Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000); see also Hamlet v. United States,
873 F.2d 1414, 1416 (Fed. Cir. 1989) (“In passing on a motion to dismiss, whether on the ground
of lack of jurisdiction over the subject matter or for failure to state a cause of action,
unchallenged allegations of the complaint should be construed favorably to the pleader.” (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))).
Plaintiff’s mother, Mary W. Conner-Nelson (“Nelson”), began working for the United
States Postal Service (“USPS”) in 1966. Compl. ¶ 26, ECF No. 1-1. As an employment benefit,
Nelson was automatically provided Federal Employee’s Group Life Insurance (“FEGLI”)
coverage. Id. Nelson designated plaintiff as the sole beneficiary under her FEGLI policy in
February 1968. Id. ¶ 29. Plaintiff alleges Nelson also elected to purchase $10,000 in additional
life insurance coverage at that same time. Id. Plaintiff claims Nelson again elected additional
FEGLI coverage in March 1981. Id. ¶ 33.
Nelson passed away on 3 February 2010. Id. ¶ 35. On 10 March 2010, plaintiff filed a
$1.5 million administrative claim with USPS’s Tort Claims Center “for its failure to procure the
decedent’s FEGLI policy in the correct amount as employing agency.” Compl. ¶ 37. According
to plaintiff, this resulted “in the loss of life insurance proceeds he was otherwise due and for the
money that was due the decedent from the unwarranted personnel action.” Id. “USPS did not
respond.” Id. Plaintiff then filed a claim with Metropolitan Life Insurance Company
(“MetLife”), the insurance carrier the government contracted with to administer FEGLI claims.
Id. ¶ 40. Plaintiff submitted to MetLife the claim form provided by the Office of Personnel
Management (“OPM”). Id. ¶ 39. In June 2010, “MetLife adjudicated $14,000 plus $96.00
interest was due.” Id.
Plaintiff disputed the amount of Metlife’s claim payment; “MetLife directed him to
OPM.” Id. ¶ 47. According to plaintiff, OPM responded to plaintiff’s dispute with “a fake OPM
Initial Agency Decision ( IAD) [sic] letter falsely proclaiming it to be a formal agency decision
rendered by OPM . . . that found after formal agency inquiry in respect to the amount of money
paid as being correct.” Compl. ¶ 48. Plaintiff sought reconsideration of the initial determination
by OPM. Id. ¶ 51. On 14 November 2011, OPM issued its final agency decision affirming the
determination that Nelson’s FEGLI benefits were properly paid out in the amount of $14,096.
Compl. Ex. 16 at 3. The final agency decision noted plaintiff had “the right to appeal this
decision to the appropriate [f]ederal district court.” Id. Plaintiff contends the two OPM
decision’s affirming MetLife’s FEGLI payment determination are “fake,” “forged,” “fabricated,”
and “fraudulent.” Compl. ¶¶ 48, 87. Plaintiff seeks $2,000,000 plus interest and a court order to
correct Nelson’s personnel records. Id. at 86 (Section VII. Prayer for Relief).
B. Past Litigation
This case is plaintiff’s third attempt to contest the amount paid to him under Nelson’s
FEGLI policy. See Conner v. U.S. Postal Serv., No. 2:11-CV-02476-JTF, 2014 WL 1350966, at
*6 (W.D. Tenn. Apr. 4, 2014) (dismissing plaintiff’s complaint because “the coverage that was
issued is in the proper amount, $14,000, and that all allegations of Defendants’ negligence are
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without merit”); Conner v. Metro. Life Ins. Co., No. 15-CV-2833-SHL-CGC, 2016 WL 3906817,
at *4–5 (W.D. Tenn. July 14, 2016) (“Plaintiff has built this lawsuit on a house of cards already
toppled by issue preclusion. . . . Without the existence of any forged documents because of the
previous rulings, Plaintiff’s Complaint is a fantastical narrative without an arguable basis in
fact. . . . Plaintiff’s Complaint contains a . . . shroud of paranoia and implausibility . . . [, and]
rest[s] on factual determinations that are barred by issue preclusion and are premised on fanciful
allegations with no arguable basis in fact . . . .”). The Sixth Circuit affirmed both dismissals of
plaintiff’s first two cases. See Conner v. U.S. Postal Serv., No. 14-5399, Order at 8–9, ECF No.
13-2 (6th Cir. Feb. 26, 2015) (affirming the first district court dismissal because “[t]he evidence
of record establishes that USPS did not transmit inaccurate information to OPM; and, therefore,
Nelson’s insurance coverage was issued in the correct amount”); Conner v. Metro. Life Ins. Co.,
No. 16-6167, 2017 WL 4158365 (6th Cir. Apr. 17, 2017). As explained by the Sixth Circuit in
affirming the second dismissal of plaintiff’s claims:
It is undisputed that Conner previously argued that USPS, the OWCP, the OPM,
and MetLife issued and relied on forged documents and false information
concerning his mother’s FEGLI benefits, including OPM’s Final Agency Decision
and a USPS Agency Certification of Life Insurance. Further, as expressed above,
we previously affirmed the district court’s ruling that Conner failed to present any
evidence to support his claims that any documents were forged or improperly
maintained. Although Conner contends that issue preclusion should not apply
because the defendants obtained the prior judgment via fraud, this argument is
nothing more than an attempt to relitigate the claim that the documents were
actually forged.
To the extent that Conner has asserted new claims based on the defendants’ alleged
conspiracy to defraud he and other beneficiaries, the district court properly
concluded that his allegations are fanciful and frivolous. . . . As the district court
correctly noted, Conner’s identification of wide-ranging conspiracy involving a
Congressman, a federal judge, the United States Attorney and various government
agencies to deprive him of approximately $50,000 in FEGLI benefits is fantastical
and implausible.
Conner, 2017 WL 4158365, at *2–3. Having failed twice at the OPM, twice at the District Court
for the Western District of Tennessee, and twice in the Court of Appeals for the Sixth Circuit,
plaintiff now brings his case to the Court of Federal Claims.
C. Procedural History
On 18 October 2021, plaintiff filed his complaint alleging the government “used the
federal court system to unlawfully take his property and property interest by usurping the
authority of the court . . . .” Compl. at iii. Plaintiff also filed an application to proceed In Forma
Pauperis that same day. See Pl.’s IFP Appl., ECF No. 2. On 17 December 2021, the
government filed a motion to dismiss (“Gov’t MTD”), ECF No. 8. On 6 January 2022, plaintiff
responded in opposition to the government’s motion to dismiss (“Pl.’s Resp.”), ECF No. 9. On
24 January 2022, the government filed a reply in support of its motion to dismiss, ECF No. 10.
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On 10 February 2022, plaintiff filed a motion for leave to file a surreply to the government’s
motion to dismiss, ECF No. 11. On 18 February 2022, the government filed a response to
plaintiff’s motion for leave to file a surreply, ECF No. 12. On 28 February 2022, plaintiff filed a
reply in support of his motion for leave to file a surreply, ECF No. 13.
II. Plaintiff’s In Forma Pauperis Application
As an initial matter, plaintiff requests the Court allow him to proceed in forma pauperis.
See Pl.’s IFP Appl. Pursuant to 28 U.S.C. § 1915(a)(1) (2018), “any court of the United States
may authorize the commencement . . . of any suit, action or proceeding . . . without prepayment
of fees or security therefor, by a person who submits an affidavit that includes a statement . . .
that the person is unable to pay such fees or give security therefor.” A plaintiff need not “be
absolutely destitute to enjoy the benefit of the statute.” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948). An affidavit demonstrating plaintiff is unable to pay the fee or
provide security and “‘still be able to provide’ himself and dependents ‘with the necessities of
life’” is sufficient. Id.; see also Waltner v. United States, 93 Fed. Cl. 139, 143 (2010) (stating the
proper inquiry when considering an application to proceed in forma pauperis is whether “paying
such fees would constitute a serious hardship on the plaintiff, not that such payment would
render plaintiff destitute.” (quoting Fiebelkron v. United States, 77 Fed. Cl. 59, 62 (2007))).
Plaintiff states in his 18 October 2021 application to proceed in forma pauperis he is
currently employed at Airport Fastpark & Relax making $1,376.00 in gross monthly wages,
$1,200 net. Pl.’s IFP Appl. at 1. The only income plaintiff has received within the past twelve
months is from his employment at Airport Fastpark & Relax. Id. at 2. Plaintiff claims he has no
assets and no money in cash or in a checking or savings account. Id. Despite certifying under
penalty of perjury that he has no automobile, plaintiff states he has a “$643.07 car note.” Id.
Plaintiff further states he has no other monthly expenses whatsoever, including housing or
utilities. Id. Per his IFP application, plaintiff seemingly enjoys $556.93 in surplus income each
month, exceeding the Court’s filing fee. Though plaintiff has attested he has surplus monthly
income, the Court nevertheless finds plaintiff has sufficiently demonstrated paying the Court’s
filing fee would “constitute a serious hardship” because he has no money in cash or in a
checking or savings account. Waltner, 93 Fed. Cl. at 143; Adkins, 335 U.S. at 339. For these
reasons, the Court grants plaintiff’s application to proceed in forma pauperis, ECF No. 2.
III. Applicable Law
A. Standard of Review for a Motion to Dismiss Under RCFC 12(b)(1) & (6)
Under RCFC 12(b)(1), plaintiffs “bear the burden of establishing the court’s jurisdiction
by a preponderance of the evidence.” Acevedo v. United States, 824 F.3d 1365, 1368 (Fed. Cir.
2016) (citing Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011))
(internal quotation marks omitted). “[A] motion to dismiss a matter from [this Court] due to the
expiration of the statute of limitations period concerns a lack of subject matter jurisdiction and is
thus properly brought under RCFC 12(b)(1).” Chisolm v. United States, 82 Fed. Cl. 185, 192,
aff’d, 298 F. App’x 957 (Fed. Cir. 2008) (citing John R. Sand & Gravel Co. v. United States, 552
U.S. 130 (2008)), aff’d, 298 F. App’x 957 (Fed. Cir. 2008). “[O]nly uncontroverted factual
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allegations are accepted as true for purposes of [a Rule 12(b)(1) motion].” Cedars-Sinai Med.
Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed. Cir. 1993) (citing Gibbs v. Buck, 307 U.S. 66, 72
(1939); 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §§ 1350, 1363,
at 219–20, 457 (1990)). “All other facts underlying the controverted jurisdictional allegations
are in dispute and are subject to fact-finding . . . .” Id. at 1584 (citations omitted). Further, “the
standards appropriate at this stage of the proceedings . . . require that the court construe all
factual disputes in favor of [the nonmoving party].” James v. J2 Cloud Servs., LLC, 887 F.3d
1368, 1373 (Fed. Cir. 2018) (citation and quotation marks omitted).
B. Pro Se Litigants
Pro se litigants are granted greater leeway than parties represented by counsel. See
Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding pro se complaints are held to “less
stringent standards than formal pleadings drafted by lawyers”). Despite such leeway, this Court
has long recognized “the leniency afforded to a pro se litigant with respect to mere formalities
does not relieve the burden to meet jurisdictional requirements.” Minehan v. United States, 75
Fed. Cl. 249, 253 (2007). The pro se plaintiff––like any other plaintiff––must bear “the burden
of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United
States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed.
Cir. 2002)). If a petitioner acts pro se in the drafting of her pleadings, it “may explain its
ambiguities, but it does not excuse its failures, if such there be.” Henke v. United States, 60 F.3d
795, 799 (Fed. Cir. 1995).
IV. Analysis of the Government’s Motion to Dismiss
The government contends plaintiff’s claims are barred by the court’s statute of
limitations. Gov’t MTD at 11. Plaintiff disagrees, arguing “the United States harmed him
through the federal court system, [so] his claims will not accrue and the six year statue [sic]
limitations prescribed by 28 U.S.C. § 2501 will not begin to run until the federal court system,
not merely the district court, has arrived at a final decision.” Compl. ¶ 165 (citing Shinnecock
Indian Nation v. United States, 782 F.3d 1345 (Fed. Cir. 2015)); Pl.’s Resp. at 5–6.
“Every claim of which the United States Court of Federal Claims has jurisdiction shall be
barred unless the petition thereon is filed within six years after such claim first accrues.”
28 U.S.C. § 2501 (2018). “A claim accrues ‘when all the events have occurred which fix the
liability of the Government and entitle the claimant to institute an action.’” Goodrich v. United
States, 434 F.3d 1329, 1333 (Fed. Cir. 2006) (quoting Hopland Band of Pomo Indians v. United
States, 855 F.2d 1573, 1577 (Fed. Cir. 1988)). “Generally, ‘[i]n the case of a breach of a
contract, a cause of action accrues when the breach occurs.’” Alder Terrace, Inc. v. United
States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (quoting Mfrs. Aircraft Ass’n v. United States, 77
Ct. Cl. 481, 523 (1933)). The pendency of a related district court action over the same claim
does not toll this Court’s statute of limitations. See Aulston v. United States, 823 F.2d 510, 514
(Fed. Cir. 1987); Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1555 (Fed. Cir. 1994);
Walker v. United States, 66 Fed. Cl. 57, 63, 65 (2005).
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Plaintiff’s complaint contains five counts: the first four are various breach of contract
claims arising out of the amount paid to him under Nelson’s FEGLI policy; the fifth is for money
that was allegedly due to Nelson on 26 February 1981 under the Back Pay Act. Compl. ¶¶ 166–
74. As a threshold matter, Nelson’s FEGLI policy does not place plaintiff in privity of contract
with the government. Walker v. United States, 161 Ct. Cl. 792, 799 (1963) (per curiam) (“[F]or
breach of [an FEGLI] policy, [the] action lies against the insurance company, not the
Government.” (citations omitted)). Assuming a contract exists anyway, plaintiff’s claims for
breach would have accrued on the date of MetLife’s FEGLI benefits payment to plaintiff: 25
June 2010. Compl. ¶ 39. It was on this date plaintiff received $14,096, as opposed to the sum
plaintiff asserts he is entitled to, in breach of the alleged contract. Id. Plaintiff filed his claims
for breach of contract in this Court on 18 October 2021, and the Court’s statute of limitations is
six years. See Compl.; 28 U.S.C. § 2501. Taking the allegations in plaintiff’s complaint as
true—and that much is questionable, see supra Section I.B.—plaintiff brought his breach of
contract claims in this Court nearly eleven years after the breach occurred. Even the OPM final
agency decision, issued on 14 November 2011 and affirming plaintiff’s FEGLI benefits payment,
is a decade old. Compl. Ex. 16. Accordingly, plaintiff’s breach of contract claims are time-
barred under the Court’s statute of limitations. 28 U.S.C. § 2501.
Considering plaintiff’s claim on behalf of Nelson under the Back Pay Act next—and
placing constitutional standing requirements aside—the Back Pay Act does not provide an
independent predicate for jurisdiction. United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir.
1983) (“The Back Pay Act is merely derivative in application; it is not itself a jurisdictional
statute.”). To invoke the Back Pay Act for purposes of this Court’s jurisdiction, “some provision
of law other than the Back Pay Act must first mandate, or at least be interpreted to mandate,
money damages to an employee suffering an unjustified or unwarranted personnel action.”
Walker v. United States, 11 Cl. Ct. 77, 80 (1986). As plaintiff alleges no separate provision of
law to support an unwarranted personnel action against Nelson, the Back Pay Act is insufficient
to satisfy the Court’s jurisdictional requirements. See Compl.; Jan’s Helicopter Serv., Inc. v.
F.A.A., 525 F.3d 1299, 1306 (Fed. Cir. 2008). Even ignoring this Court’s clear jurisdictional bar
against plaintiff’s claim, as plaintiff states in his complaint, if Nelson was entitled to money
under the Back Pay Act, “the money was actually due” “on February 26, 1981.” Compl. ¶ 173.
Plaintiff filed his complaint on 18 October 2021, and the Court’s statute of limitations is six
years; plaintiff brings this claim over forty years after the claim accrued. See Compl.; 28 U.S.C.
§ 2501. Accordingly, plaintiff’s claim on behalf of Nelson under the Back Pay Act is time-
barred by the statute of limitations. 28 U.S.C. § 2501.
As a final matter, plaintiff appears to argue, though not expressly, the Court’s statute of
limitations is either tolled or otherwise has not yet begun because of his district court actions
over these same claims. 1 Compl. ¶ 165; Pl.’s Resp. at 5–6. Plaintiff is mistaken. The fact that
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Plaintiff’s claims also appear to be barred under the doctrine of res judicata. Ammex, Inc. v. United States, 334
F.3d 1052, 1055 (Fed. Cir. 2003) (holding under the doctrine of res judicata “[a] final judgment on the merits of an
action precludes the parties or their privies from relitigating issues that were or could have been raised in that
action” and will “also bar a second suit raising claims based on the same set of transactional facts”) (first quoting
Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); then citing Migra v. Warren City School Dist. Bd.
of Educ., 465 U.S. 75, 77 (1984)); Bowers Inv. Co., LLC v. United States, 695 F.3d 1380, 1384 (Fed. Cir. 2012).
Plaintiff himself describes for the Court how he brought the very same claims to the U.S. District Court for the
Western District of Tennessee against the same parties involving the same timeline of events as he describes in his
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plaintiff was litigating these very same claims in federal district court has no bearing on this
Court’s statute of limitations. See Aulston, 823 F.2d at 514 (holding that a plaintiff’s challenge
to an agency action in district court does not toll the statute of limitations in the Court of Federal
Claims); Loveladies Harbor, Inc., 27 F.3d at 1555 (same). Rather, plaintiff’s cause of action
began to accrue when the alleged breach occurred. Alder Terrace, Inc., 161 F.3d at 1377. As
noted above, plaintiff’s complaint in this Court is late by many years. For these reasons, the
Court has no choice but to grant the government’s motion to dismiss. See Hopland Band of
Pomo Indians, 855 F.2d at 1576–77 (“The 6-year statute of limitations on actions against the
United States is a jurisdictional requirement attached by Congress as a condition of the
government’s waiver of sovereign immunity and, as such, must be strictly construed.” (citations
omitted)).
V. Conclusion
The Court has considered all of plaintiff’s arguments. To the extent not discussed
specifically herein, they are unpersuasive, meritless, or unnecessary for resolving the issues
currently before the Court. Plaintiff’s claims are barred by at least the court’s statute of
limitations. Accordingly, the Court: (1) GRANTS plaintiff’s motion to proceed in forma
pauperis; (2) GRANTS the government’s motion to dismiss; and (3) DISMISSES plaintiff’s
complaint. 2 The Clerk is DIRECTED to enter judgment dismissing plaintiff’s complaint.
IT IS SO ORDERED.
s/ Ryan T. Holte
complaint in this case. Pl.’s Resp. at 11–14; see Compl.; see also Conner v. U.S. Postal Serv., No. 2:11-CV-02476-
JTF, 2013 WL 8184415 (W.D. Tenn. Sept. 16, 2013) (magistrate report and recommendation adopted in part by the
final district court judgment); Harms v. United States, 972 F.2d 339 (Table), 1992 WL 203942, at *8 (4th Cir. 1992)
(holding there was privity between the USPS and the United States because the USPS had authority to represent the
interests of the United States in the former suit); Biermann v. United States, 67 F. Supp. 2d 1057, 1060 (E.D. Mo.
1999) (same). The district court summarily denied his claims and dismissed his case with prejudice. Conner, 2014
WL 1350966, at *6 (dismissing plaintiff’s complaint because “the coverage that was issued is in the proper amount,
$14,000, and that all allegations of Defendants’ negligence are without merit”); see Spruill v. Merit Sys. Prot. Bd.,
978 F.2d 679, 686 (Fed. Cir. 1992) (holding dismissal for failure to state a claim is a final judgement on the merits);
see also supra Section I.B. The district court’s judgment was then affirmed by the Sixth Circuit. See Conner v. U.S.
Postal Serv., No. 14-5399, Order at 8–9, ECF No. 13-2 (6th Cir. Feb. 26, 2015). Accordingly, even if plaintiff’s
claims were timely—and they are not—they would be barred by the doctrine of res judicata. See Ammex, 334 F.3d
at 1055 (holding a claim is barred when, as here: (1) the parties are identical to that of a prior suit; (2) the prior suit
was decided on the merits; and (3) the new claim is based on the same transactional facts as the prior suit).
Plaintiff’s arguments on the Court’s statute of limitations further acknowledge the claims he brings before this Court
are the same as those raised in district court. See Compl. ¶ 165 (arguing “the United States harmed him through the
federal court system, [so] his claims will not accrue and the six year statue [sic] limitations prescribed by 28 U.S.C.
§ 2501 will not begin to run until the federal court system, not merely the district court, has arrived at a final
decision.”). If this Court’s statute of limitations supposedly does not run until the entire “federal court system . . .
has arrived at a final decision,” id., then that would imply plaintiff is aware he is bringing the same claims he
brought before the district court to exhaust all federal court options.
2
On 10 February 2022, plaintiff filed a motion for leave to file a surreply in opposition to the government’s motion
to dismiss, ECF No. 11. The government responded to plaintiff’s motion for leave stating it defers to the Court as to
whether plaintiff’s motion for leave should be granted, ECF No. 12. The Court GRANTS plaintiff’s motion for
leave to file a surreply, ECF No. 11, and considered it in ruling on the government’s motion to dismiss.
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RYAN T. HOLTE
Judge
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