Alegre v. Contreras

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CINDY ALEGRE, et al., Case No.: 16-cv-2442-AJB-KSC Plaintiffs, 12 ORDER: v. 13 UNITED STATES OF AMERICA, et al., (1) DENYING PLAINTIFFS’ MOTION 14 Defendants. FOR SUMMARY JUDGMENT; and 15 (2) GRANTING DEFENDANTS’ 16 MOTION FOR SUMMARY 17 JUDGMENT

18 (Doc. Nos. 176 & 183) 19 20 Presently before the Court is (1) Cindy Alegre, et. al.’s (“Plaintiffs”) Motion for 21 Summary Judgment and/or Summary Adjudication of Facts (Doc. No. 176); and 22 (2) Defendants United States of America, Department of the Interior, and Individual 23 Defendants Sally Jewell, Lawrence Roberts, and Michael Black’s (sued in their official 24 capacities) (collectively, “Defendants”) motion for summary judgment. (Doc. No. 183.) 25 The motions have been fully briefed. (Doc. Nos. 189, 190, 186, & 193.) For the reasons set 26 forth below, the Court GRANTS Defendants’ motion for summary judgment, and 27 DENIES Plaintiffs’ motion for summary judgment. 28 /// 1 I. BACKGROUND 2 The facts of this case have been thoroughly detailed in previous documents, 3 including this Court’s previous order granting Defendants’ motion to dismiss Plaintiffs’ 4 third cause of action from the Fourth Amended Complaint (“FAC”). (See Doc. No. 121.) 5 Although the complaint has been amended several times, the core facts remain the same. 6 Plaintiffs are the descendants of Jose Juan Martinez, Guadalupe Martinez, and their 7 daughter Modesta Martinez Contreras (collectively, “Martinez Ancestors”). (FAC, Doc. 8 No. 105, ¶ 12–19.) Plaintiffs include those who are residents of San Diego County, “direct 9 lineal descendants of Jose Juan Martinez and Guadalupe Martinez,” and “direct lineal 10 descendants of Modesta Contreras.” (Id. ¶ 15.) Plaintiffs are enrolled in the San Pasqual 11 Band of Mission Indians (“Band”) but are not federally recognized as Band members by 12 the Bureau of Indian Affairs (“BIA”). (Id.) 13 Plaintiffs assert each of the Martinez Ancestors were full blood San Pasqual Indians. 14 (Id. ¶ 28.) In 2005, Plaintiffs submitted their applications to the Enrollment Committee for 15 enrollment with the Band. (Id. ¶ 29.) The Enrollment Committee unanimously voted that 16 Plaintiffs had established they were qualified for enrollment. (Id.) This determination “was 17 predicated on a finding that Plaintiffs’ ancestor Modesta’s blood degree should be 18 increased from ¾ to 4/4” because “both of Modesta’s parents were full blood San Pasqual 19 Indians, based upon the totality of the documentary evidence.” (Id. ¶ 30.) The Band’s 20 General Council then unanimously agreed with the Enrollment Committee on April 10, 21 2005. (Id. ¶ 30.) Later, on September 12, 2005, the Band’s Business Committee concurred 22 with both the General Council and the Enrollment Committee and sent its findings to 23 former Superintendent of the BIA’s Southern California Agency, James Fletcher 24 (“Fletcher”). (Id. ¶ 31.) Plaintiffs allege that under federal law and the Tribal Constitution, 25 they were eligible to be enrolled and federal recognized as San Pasqual Indians, and that 26 Defendants were required to accept the Tribal recommendations unless the 27 recommendation was “clearly erroneous.” (Id.) 28 /// 1 On September 22, 2005, the Enrollment Committee—in a separate proceeding— 2 requested the BIA to increase Modesta’s blood degree from 3/4 to 4/4 degree San Pasqual 3 blood. (Id. ¶ 32.) Three months later, on December 8, 2005, Fletcher sent former Director 4 of the BIA’s Pacific Regional Office Amy Dutschke (“Dutschke”) a letter, stating “the 5 preponderance of the evidence does not sufficiently demonstrate that Modesta [] is full 6 blood[,]” (id. ¶ 33), to which Dutschke concurred in a letter on April 7, 2006, (id. ¶ 34– 7 35). However, Plaintiffs allegedly never received written notice of either Fletcher or 8 Dutschke’s findings. (Id. ¶ 35.) 9 In 2014, Plaintiffs submitted FOIA requests to determine the status of their 10 applications, to which they received responses on October 1, 2014, and May 27, 2015. (Id. 11 ¶ 44). It was at this time Plaintiffs learned of Dutschke’s April 7, 2006 negative 12 determination of Plaintiffs’ enrollment requests. (Id.) 13 Plaintiffs filed their appeal with Dutschke in January and April 2015. (Id. ¶ 45.) 14 Around July 25, 2015, former Superintendent of the BIA’s Southern California Agency 15 Javin Moore issued a letter stating the BIA no longer had the original applications to 16 adjudicate the enrollment, and the April 7, 2006 letter was final for the Department, 17 exhausting Plaintiffs’ administrative remedies. (Id. ¶ 45.) On May 6, 2016, Plaintiffs 18 resubmitted their appeal, but did not receive a response from Defendants. (Id. ¶ 46–47.) 19 Plaintiffs filed suit, alleging that Defendants violated the Administrative Procedures 20 Act (“APA”) by failing to provide Plaintiffs with legally sufficient notice of their decisions 21 not to increase Modesta’s blood degree and negative determination of Plaintiffs’ 22 enrollment requests. (Id. ¶ 77.) Plaintiffs further assert that Defendants’ decisions were 23 arbitrary and capricious. (Id.) Moreover, Plaintiffs request this Court to issue an order 24 and/or mandate: (1) directing Defendants to adjudicate Plaintiffs’ enrollment applications; 25 and (2) directing Defendants to properly review Plaintiffs’ applications for federal 26 recognition in the Band. (Id. ¶ 96.) 27 /// 28 /// 1 II. PROCEDURAL HISTORY 2 Plaintiffs’ complaint was first filed on September 28, 2016. (Doc. No. 1.) After 3 several rounds of amendments, Plaintiffs are now on their Fourth Amended Complaint. 4 (Doc. No. 105.) Additionally, the claims against Defendants Amy Dutschke and Javin 5 Moore in their individual capacities have been dismissed. (Doc. No. 98.) The remaining 6 claims in the FAC are: (1) an Administrative Procedures Act claim, and (2) a claim seeking 7 declaratory relief or a writ of mandate under the APA. (Id.) On September 1, 2021, 8 Plaintiffs filed a motion for summary judgment. (Doc. No. 176.) Defendants opposed (Doc. 9 No. 189), and Plaintiffs replied (Doc. No. 190). Thereafter, on September 10, 2021, 10 Defendants filed a cross-motion for summary judgment. (Doc. No. 183.) Plaintiffs opposed 11 (Doc. No. 186), and Defendants replied (Doc. No. 193). This order follows. 12 III. LEGAL STANDARD 13 The standard of review under the APA is deferential to the agency. Section 706(2) 14 of the APA grants a court the power to set aside agency action, findings, and conclusions 15 found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 16 with law.” 5 U.S.C. § 706(2)(A). The scope of judicial review under the “arbitrary and 17 capricious” standard is narrow, and the court is not to substitute its judgment for that of the 18 agency. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 19 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). 20 Summary judgment under Federal Rule of Civil Procedure 56(a) is appropriate when 21 there is no genuine dispute as to any material fact and the moving party is entitled to 22 judgment as a matter of law. Fed R. Civ. P. 56(a). Under the APA, the reviewing court 23 does not take evidence or make findings of fact. Cronin v. U.S. Dep’t of Agric., 919 F.2d 24 439, 443 (7th Cir. 1990). When reviewing administrative action under the APA on a motion 25 for summary judgment, there are no disputed facts that the court must resolve. Occidental 26 Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985); Home Builders Ass’n of N. Cal. v. U. 27 Fish and Wildlife Serv., 529 F. Supp. 2d 1110, 1117 (N.D. Cal. 2007). Rather, “the function 28 of the district court is to determine whether or not as a matter of law the evidence in the 1 administrative record permitted the agency to make the decision it did.” Occidental Eng’g 2 Co., 753 F.2d at 769. 3 “An agency’s action is arbitrary and capricious if the agency fails to consider an 4 important aspect of a problem, if the agency offers an explanation for the decision that is 5 contrary to the evidence, if the agency’s decision is so implausible that it could not be 6 ascribed to a difference in view or be the product of agency expertise, or if the agency’s 7 decision is contrary to the governing law.” Lands Council v. Powell, 395 F.3d 1019, 1026 8 (9th Cir. 2004) (citations omitted). “Although [the court’s] inquiry must be thorough, the 9 standard of review is highly deferential; the agency’s decision is ‘entitled to a presumption 10 of regularity,’ and [the court] may not substitute [its] judgment for that of the agency.” San 11 Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). 12 IV. DISCUSSION 13 Plaintiffs move for summary judgment on both of their claims for relief under the 14 APA. (Doc. Nos. 176, 183.) In their cross motion for summary judgment, Defendants argue 15 that Plaintiffs do not have standing to bring their claims, that the statute of limitations bars 16 Plaintiffs’ APA claims, and that regardless, Plaintiffs’ claims fail on the merits. (Doc. No. 17 183.) The Court first addresses the issues of standing and the statute of limitations. Because 18 these issues are dispositive, the Court need not reach the merits of Plaintiffs’ claims. 19 A. Administrative Procedures Act 20 The APA gives federal courts a right to judicial review of all “final agency action 21 for which there is no other adequate remedy in a court.” 5 U.S.C. § 704; see also Alto v. 22 Black, 738 F.3d 1111, 1117 (9th Cir. 2013). “Federal courts generally may not interfere 23 with tribal enrollment decisions, ‘[g]iven the often vast gulf between tribal traditions and 24 those with which federal courts are more intimately familiar. . . .’” Alto, 738 F.3d at 1122 25 (quoting Santa Carla Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)). However, in 26 limited circumstances, this right extends to matters concerning tribal enrollment. Id. at 27 1123. For instance, and as is the case here, the court may review agency action that “was 28 triggered by the Band’s own request, not that of the putative tribal members.” Id.; see also 1 Moapa Band of Paiute Indians v. U.S. Dep’t of Interior, 747 F.2d 563, 565–66 (9th Cir. 2 1984) (applying APA standards to review the Secretary of Interior’s (“SOI”) recission of a 3 tribal ordinance where the tribal constitution granted the SOI authority to do so). 4 Here, neither party disputes this Court’s right to review the BIA’s decisions 5 regarding tribal enrollment. (See Doc. Nos. 176 at 10, 183 at 19.) Further, because the 6 Band’s Constitution vests in the BIA the authority to determine who may be eligible for 7 tribal enrollment, the Court may review the BIA’s agency action here. 8 In their motion, Plaintiffs assert Defendants violate 5 U.S.C. § 706 by (1) denying 9 Plaintiffs due process of law; (2) relying upon unvetted and unreliable evidence; 10 (3) choosing to ignore relevant information about the Martinez family; and (4) historically 11 denying Plaintiffs their right to due process, resulting in the creation of two bands within 12 the Tribe. (See Doc. No. 176.) In their cross-motion for summary judgment, Defendants 13 contend Plaintiffs’ APA claims violate the statute of limitations, that Plaintiffs lack 14 standing to challenge BIA’s actions, and that regardless, the agency’s actions were not 15 arbitrary, capricious, or an abuse of discretion. 16 1. Whether Plaintiffs Lack Standing 17 With respect to each claim and each type of relief sought, Plaintiffs must satisfy the 18 injury, causation, and redressability requirements for constitutional standing. Specifically, 19 Plaintiffs must show that (1) they have suffered an “injury in fact” that is concrete and 20 particularized, and also “actual and imminent, not conjectural or hypothetical”; (2) the 21 injury is “fairly traceable to the [Defendants’] challenged action”; and (3) it is likely, as 22 opposed to merely speculative, that “a favorable judicial decision will prevent or redress 23 the injury.” Summers v. Earth Island Inst., 555 U.S. 488 (2009); see also Lujan v. 24 Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). 25 Injury-in-fact is satisfied by a showing of “personal injury”—i.e., that the plaintiff 26 has a “personal stake” in the dispute—that is “concrete” and “particularized” as to the 27 plaintiff, and “actual or imminent.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 28 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). So long 1 as the plaintiff has alleged an injury that is actual or imminent, concrete, and particularized 2 to him, the alleged injury need not be significant. See Animal Legal Def. Fund v. U.S. Dep’t 3 of Agriculture, 223 F. Supp. 3d 1008, 1016 (C.D. Cal. 2016) (quoting binding authority). 4 The injury alleged must also be “fairly traceable to the challenged action.” Clapper, 5 568 U.S. at 409 (quoting Monsanto, 561 U.S. at 149). That is, “there must be a causal 6 connection between the injury and the conduct complained of” rather than “injury that 7 results from the independent action of some third party not before the court.” Lujan, 504 8 U.S. 555, 560–61 (1992). Finally, the injury must be “redressable by a favorable ruling.” 9 Clapper, 568 U.S. at 409 (quoting Monsanto, 561 U.S. at 149). 10 Defendants first argue that Plaintiffs have failed to establish their standing to sue 11 pursuant to the APA. Specifically, Defendants assert that because the Band’s Enrollment 12 Committee requested the BIA to increase Ms. Contreras’ blood degree, rather than 13 Plaintiffs, Plaintiffs may not rest their claim on the legal rights or injuries of third parties. 14 (Doc. No. 183 at 27.) Additionally, Defendants contend that Plaintiffs’ claim does not meet 15 the limited exception to third-party claims, as “there was no hinderance to the [Enrollment 16 Committee] protecting its own interests.” (Id.) 17 In response, Plaintiffs argue that although they are a third party to the request to 18 increase Ms. Contreras’ blood degree, they have suffered an injury to themselves and have 19 a personal stake in the outcome under Flast v. Cohen, 392 U.S. 83 (1968). (Doc. No. 186 20 at 22.) Specifically, Plaintiffs assert they have a direct and inseparable relationship between 21 themselves and the blood they inherited from their ancestor, Modesta Martinez Contreras. 22 (Id.) As such, they contend they have a personal stake in the outcome of the controversy, 23 including potential benefits derived from becoming a federally recognized member of the 24 Band. (Id.) 25 Defendants’ assertion that Plaintiffs lack standing as third parties is misdirected. 26 Although the Enrollment Committee was the party to request the BIA to increase Ms. 27 Contreras’ blood degree, it is primarily Plaintiffs’ rights, not those of the Enrollment 28 Committee, that is at stake. Defendants cite United States v. Flores-Villar, 536 F.3d 990 1 (9th Cir. 2008), abrogated on other grounds by Sessions v. Morales-Santana, 137 S.Ct. 2 1678 (2017), in support of their contention. However, this case is distinguishable as the 3 defendant there attempted to pursue rights belonging to his father, rather than himself, and 4 no obstacles prevented defendant’s father from asserting his own constitutional rights. Id. 5 at 998. Similarly, the plaintiff in Kyung Park v. Holder, 572 F.3d 619 (9th Cir. 2009), 6 brought a claim asserting violations of her husband’s rights. There, the Court found the 7 plaintiff had no standing because nothing in the record indicated that her husband could 8 not protect his own interests. Id. at 625. Here, however, Plaintiffs are not pursuing the rights 9 of another party, but rather their own. 10 Plaintiffs have shown they will suffer a particularized, concrete, and actual or 11 imminent injury to themselves resulting from the denied benefits as a result of Defendants’ 12 decision not to increase Modesta’s blood degree. See Preminger v. Peake, 552 F.3d 757, 13 763 (9th Cir. 2008) (observing that an Article III injury “may be minimal” and that even 14 “‘an identifiable trifle’ is sufficient to establish standing” so long as the alleged harm 15 affects the plaintiff in a “personal and individualized way” (quoting Lujan, 504 U.S. at 560 16 n.1; Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir. 17 2008))). Plaintiffs have therefore satisfied the injury-in-fact requirement and have standing 18 to bring this suit. 19 2. Whether Plaintiffs’ APA Claim Violates the Statue of Limitations 20 Pursuant to 28 U.S.C. § 2401(a), “every civil action commenced against the United 21 States shall be barred unless the complaint is filed within six years after the right of action 22 first accrues.” The six-year statute of limitations under § 2401(a) also applies to APA 23 claims. See Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 24 2013) (citing 28 U.S.C. § 2401(a); Wind River Mining Corp. v. United States, 946 F.2d 25 710, 712–13 (9th Cir. 1991)). Under the APA, the right of action generally accrues at the 26 time the agency action becomes final. See Wind River Mining Corp., 946 F.2d at 715. To 27 be “final” an agency action “must mark the consummation of the agency’s decision-making 28 process—it must not be of a merely tentative or interlocutory nature.” Bennet v. Spear, 520 1 U.S. 154, 177–78 (1997) (internal quotation marks and citation omitted). It must also be 2 an action “by which rights or obligations have been determined, or from which legal 3 consequences will flow.” Id. at 178. However, a claim generally accrues under federal law 4 when a party knew or should have known an injury occurred. Shiny Rock Min. Corp. v. 5 United States, 906 F.2d 1362, 1364 (9th Cir. 1990). 6 The parties do not dispute that the six-year limitation applies; rather, the crux of the 7 issue is when the right of action accrued. Plaintiffs assert that the right to action did not 8 accrue until they exhausted their administrative remedies on July 25, 2015, when Moore 9 sent Plaintiffs a letter stating that the April 7, 2006 letter was final for the BIA, in response 10 to Plaintiffs’ appeal in April 2015. (Doc. No. 186 at 20.) Plaintiffs further allege that 11 because they did not receive any letter regarding denial in 2006 or notice of the final agency 12 action until Attorney McIntosh received responses to her FOIA requests on October 1, 13 2014, and May 27, 2015, they did not have actual notice of the BIA’s decision. (Id.) 14 Plaintiffs correctly assert “that knowledge of injury is essential for a cause of action to 15 accrue.” Shiny Rock Min. Corp., 906 F.2d at 1364; see also Acri v. Int’l Ass’n of Machinists, 16 781 F.2d 1393, 1396 (9th Cir. 1986) (“Under federal law a cause of action accrues when 17 the plaintiff is aware of the wrong and can successfully bring a cause of action.”), cert. 18 denied, 479 U.S. 816 (1986). “Actual knowledge of government action, however, is not 19 required for a statutory period to commence.” Id. 20 In their motion, Defendants assert Plaintiffs’ initial complaint was filed more than 21 ten years after the denial of the Enrollment Committee’s request to increase Ms. Contreras’ 22 blood degree and the return of Plaintiffs’ applications on or around April 7, 2006, and thus 23 untimely. (Doc. No. 183 at 24–25.) Defendants point to the Administrative Record 24 (“AR”),1 which indicates that once the Enrollment Committee confirmed receipt of DOI’s 25 final decision, the Enrollment Committee then mailed each enrollment applicant a letter 26

27 1 References to the Administrative Record (Doc. No. 165) will be designated with the prefix “AR” 28 1 informing them of the BIA’s decision and the Enrollment Committee’s concurrence with 2 that decision. (Id. at 25.) In a letter dated July 28, 2006, the Enrollment Committee then 3 sent the BIA’s Southern California Agency a list of individuals they determined did not 4 qualify for enrollment in the Band (allegedly including several Plaintiffs) and stated that 5 notices were sent to them via certified mail. (Id.) Further, Defendants assert that even if 6 Plaintiffs had not received a letter with the BIA’s decision, Plaintiffs should have 7 reasonably known that their applications had not been approved well before the statute of 8 limitations expired. (Id. at 26.) 9 The Court finds Plaintiffs have adequately alleged they lacked actual notice of the 10 final agency action. However, Defendants correctly assert that Plaintiffs should have 11 known or could reasonably have discovered within six years of April 7, 2006, of the denial 12 to increase Ms. Contreras’ blood degree and enroll Plaintiffs in the Band. (See Doc. No. 13 183 at 26.) Indeed, facial challenges to agency actions must be raised within six years of 14 promulgation because “[t]he grounds for such challenges will usually be apparent to any 15 interested citizen within a six-year period following promulgation of the decision.” Wind 16 River Mining Corp., 946 F.2d at 715. Plaintiffs here had six years in which to inquire about 17 the status of their request to increase Ms. Contreras’ blood degree and enroll in the Band 18 and to bring their lawsuit. 19 Additionally, the Court finds the BIA’s decision became effective thirty days after 20 April 7, 2006, when the time for appeal under former 25 C.F.R. § 48.9 expired. (See 21 AR 30.) The Code of Federal Regulations specifically defines when a decision becomes 22 final for the Department of the Interior or the BIA under 5 U.S.C. § 704: “Decisions made 23 by officials of the [BIA] shall be effective when the time for filing a notice of appeal has 24 expired and no notice of appeal has been filed.” 25 C.F.R. § 2.6(b) (emphasis added). 25 Requiring plaintiffs to exhaust their administrative remedies “allows agencies to develop a 26 complete factual record and apply their expertise before judicial review occurs.” White 27 Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988). Here, Plaintiffs bring 28 their APA claim under former 25 C.F.R. §§ 48, et seq., which states an “applicant shall 1 then have thirty (30) days from the date of the mailing of the notice to him [of the Director’s 2 determination] to file with the Director an appeal from the rejection of his application[.]” 3 (AR 30.) Additionally, Plaintiffs fail to cite case law for their assertion that the statute of 4 limitations does not begin to run until an appeal is filed nine years after the final agency 5 action, and the Court finds this interpretation of the law unreasonable. Thus, the Court finds 6 the statute of limitations on Plaintiffs’ claim began to run on or around May 7, 2006, thirty 7 days after the April 7, 2006 letter was issued. 8 Plaintiffs next contend that if the Court finds they filed their complaint beyond the 9 six-year statute of limitations, that the Court should apply the doctrine of equitable tolling. 10 (Doc. No. 186 at 14.) However, Plaintiffs did not diligently pursue their rights or show that 11 extraordinary circumstances prevented them from doing so. Although Plaintiffs assert “the 12 non-San Pasqual Trask descendants mandate all Tribal Government meetings be closed to 13 all people, except Federally Recognized Tribal members” and “the BIA would not meet 14 with the San Pasqual descendants who are not Federally Recognized Tribal members,” (id. 15 at 15), Plaintiffs have failed to make any showing that attempts were made to pursue their 16 rights. Equitable tolling is therefore not appropriate. See Kwai Fun Wong v. Beebe, 732 17 F.3d 1030, 1052 (9th Cir. 2013) (the party seeking equitable tolling must establish: “(1) that 18 [it] has been pursuing [its] rights diligently, and (2) that some extraordinary circumstances 19 stood in [its] way.” (internal quotation marks omitted)), aff’d sub nom, United States v. 20 Kwai Fun Wong, 575 U.S. 402 (2015). 21 Lastly, Plaintiffs’ argument that there is a “continuing violation” fails because the 22 “continuing violations” doctrine “is not applicable in the context of an APA claim for 23 judicial review.” Gros Ventre Tribe v. United States, 344 F. Supp. 2d 1221, 1229 n.3 (D. 24 Mont. 2004), aff’d, 469 F.3d 801 (9th Cir. 2006); see also Preminger v. Sec’y of Veterans 25 Affairs, 517 F.3d 1299, 1307 (Fed. Cir. 2008). 26 Based on the foregoing, the Court finds Plaintiffs’ APA claims barred by the statute 27 of limitations. 28 /// 1 CONCLUSION 2 For all the reasons stated, the Court GRANTS Defendants’ motion for summary 3 ||judgment and DENIES Plaintiffs’ motion for summary judgment. 4 5 IT IS SO ORDERED. 6 Dated: December 14, 2021

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