1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 22, 2024 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 JOHN STOCKTON, RICHARD EGGLESTON, M.D., THOMAS T. NO. 2:24-CV-0071-TOR 8 SILER, M.D., DANIEL MOYNIHAN, M.D., CHILDREN’S ORDER GRANTING MOTION TO 9 HEALTH DEFENSE, a not- DISMISS AND DENYING for-profit corporation, and JOHN PRELIMINARY INJUNCTION 10 AND JANE DOES, M.D.s 1-50,
11 Plaintiffs,
12 v.
13 ROBERT FERGUSON, in his official capacity as Attorney General of the 14 State of Washington, and KYLE S. KARINEN, in his official capacity as 15 Executive Director of the Washington Medical Commission, 16 Defendants. 17
18 BEFORE THE COURT are Plaintiffs’ Motion for Preliminary Injunction 19 (ECF No. 15) and Defendants’ Motion to Dismiss (ECF No. 17). Plaintiffs request 20 oral argument. ECF No. 23. Pursuant to LCivR 7(i)(3)(B)(iii), the Court 1 determines oral argument is unwarranted. The Court has reviewed the record and 2 files herein, the completed briefing, and is fully informed. For the reasons
3 discussed below, Plaintiffs’ Motion for Preliminary Injunction, ECF No. 15, is 4 DENIED and Defendants’ Motion to Dismiss, ECF No. 17, is GRANTED. 5 BACKGROUND
6 This case arises out of Plaintiffs’ challenge to the Washington Medical 7 Commission’s (“the Commission”) investigations of two licensed medical 8 professionals who published false information about the SARS-CoV-2 virus 9 (“COVID-19”) in print news media and online. Plaintiffs filed the operable First
10 Amended Complaint (“FAC”) on April 9, 2024. ECF No. 14. The FAC raises 11 four causes of action requesting: (1) declaratory judgment that Defendants’ future 12 investigations, prosecutions, and sanctions violates Plaintiffs’ First Amendment
13 Rights; (2) declaratory judgment that Defendants’ current investigations, 14 prosecutions, and sanctions violates Plaintiffs’ First Amendment Rights; (3) 15 declaratory judgment that RCW 18.130.180(1) and (13) are facially 16 unconstitutional and unconstitutionally overbroad and/or vague; and (4)
17 declaratory judgment that the Commission’s interpretation of its laws violates 18 Plaintiffs Eggleston, Siler and Moynihan’s Fifth and Fourteenth Amendment Due 19 Process rights. Id.
20 1 Plaintiff John Stockton is actively involved in matters of public interest and 2 co-hosts a podcast dealing with various topics including COVID-19. He is not a
3 doctor nor subject to the regulations or procedures of the Commission. He 4 contends that he has a right to hear licensed physicians who disagree with the 5 “mainstream COVID narrative.” ECF No. 14 at 5-6, ¶¶ 9-10; see also ECF No.
6 15-1. 7 Plaintiff Richard Eggleston is a retired ophthalmologist and is currently the 8 subject of an administrative proceeding by the Commission. That proceeding has 9 not been finalized. ECF No. 14 at 6, ¶¶ 11-12; see also ECF No. 15-2.
10 Plaintiff Thomas T. Siler is a retired physician who is currently the subject 11 of an administrative proceeding by the Commission. That proceeding has not been 12 finalized. ECF No. 14 at 6, ¶ 13; see also ECF No. 15-3.
13 Plaintiff Daniel Moynihan is a retired family medicine physician who is not 14 subject of any administrative proceeding but complains that his speech is chilled 15 by the Commission’s actions and that he would like to hear from other physicians 16 speaking out against the mainstream COVID narrative. ECF No. 14 at 6-7, ¶ 14;
17 ECF No. 15-4. 18 Plaintiffs’ counsel does not know who John and Jane Does 1-50 are and 19 therefore does not represent them. Plaintiffs’ counsel alleges that the Doe
20 Plaintiffs are licensed Washington physicians currently subject to the 1 Commission’s investigations and prosecutions. ECF No. 14 at 7, ¶ 15. 2 Plaintiff Children’s Health Defense (“CHD”) is a non-profit corporation
3 whose mission is to end childhood health epidemics. Its mission includes 4 advocating for medical freedom, bodily autonomy, and an individual’s right to 5 receive the best information available based on a physician’s best judgment. Id. at
6 7-9, ¶¶ 16-24. CHD asserts that its physician members are chilled from speaking 7 out about the risk profile of the COVID vaccines and that its lay members have a 8 right to receive such nonconforming opinions. Id. at 8, ¶ 19; see also ECF Nos. 9 15-5.
10 Defendant Robert Ferguson is the Washington State Attorney General. His 11 office and staff represent the Commission in its prosecution of physicians in 12 disciplinary cases. Id. at 10, ¶¶ 25-26.
13 Defendant Kyle S. Karinen is the Commission’s Executive Director and 14 oversees the investigations and prosecutions of physicians for misconduct. Id. at ¶ 15 28. 16 The Commission regulates physicians to assure accountability and public
17 confidence in the practice of medicine. ECF No. 17 at 5. It investigates “all 18 complaints or reports of unprofessional conduct” against licensed physicians. 19 RCW 18.130.050(2). This includes, as relevant here, complaints alleging “moral
20 turpitude, dishonesty, or corruption relating to the practice of” medicine, and 1 “[m]isrepresentation or fraud in any aspect of” the practice of medicine. RCW 2 18.130.180(1), (13).
3 The Commission’s response to complaints received about licensed 4 physicians is guided by the Uniform Disciplinary Act (UDA), RCW 18.130 et seq. 5 Under the UDA, each complaint received by the Commission is reviewed by a
6 panel of three commissioners. ECF No. 18 at 3, ¶ 8. The panel determines 7 whether to initiate an investigation or close the complaint. Id. If an investigation 8 is authorized, the complaint will be assigned to an investigator, who undertakes 9 discovery and prepares an objective report. Id. at ¶¶ 9-10. The objective report is
10 forwarded to a reviewing commissioner and a panel of at least three 11 commissioners. Id. at ¶ 10. The panel may elect to (1) close the case, (2) 12 investigate further, (3) offer a stipulation to informal disposition, or (4) issue a
13 Statement of Charges. Id. If the panel decides to issue a Statement of Charges, 14 then an Assistant Attorney General will review the file and sign off on the Charges 15 before service is made on the respondent physician. Id. at 4, ¶ 12. Service of the 16 Statement of Charges formally commences the administrative adjudicative process.
17 Id. at ¶ 13. When a respondent timely requests a hearing to contest the charges 18 issued against him, a formal hearing is held in front of a panel of three 19 commissioners with a health law judge acting as the presiding officer. Id. at ¶ 14.
20 Both sides are entitled to present opening and closing statements, evidence, and 1 witnesses. Id. at ¶ 15. At the termination of the adjudicative proceeding, the panel 2 determines whether to take disciplinary action against the respondent and issues a
3 written order. Id. at 5, ¶ 16. A respondent who disagrees with the panel’s final 4 disposition of his case may seek reconsideration from the panel or direct judicial 5 review in a Washington state superior court or court of appeals. Id. at ¶ 17.
6 The Commission issued a Statement of Charges against Dr. Eggleston on 7 August 3, 2022 concerning newspaper articles he wrote about COVID-19. ECF 8 No. 17 at 7. Dr. Eggleston’s articles minimized deaths from the SARS-CoV-2 9 virus, incorrectly asserted that PCR tests for a COVID diagnosis are inaccurate,
10 and falsely stated that COVID-19 vaccines and mRNA vaccines are harmful or 11 ineffective and that ivermectin is a safe and effective treatment for COVID-19. 12 See, e.g., ECF No. 20-2 at 4-21. A full and final hearing by the Commission has
13 not been conducted at this time and no penalties have been imposed. ECF No. 18 14 at 5-6, ¶ 19. 15 The Commission issued a Statement of Charges against Dr. Siler on October 16 25, 2023, after it received complaints about Internet blog posts by Dr. Siler. Dr.
17 Siler wrote false statements about the risks of contracting COVID-19, the 18 effectiveness of hydroxychloroquine and ivermectin as treatments for COVID-19, 19 the transmissibility of COVID-19 from children, and the safety of COVID-19
20 vaccines. See, e.g., ECF No. 20-2 at 42-61. A full and final hearing has not been 1 conducted at this time and no penalties have been imposed. ECF No. 18 at 5-6, ¶ 2 19.
3 DISCUSSION 4 Plaintiffs move for a preliminary injunction. ECF No. 15. Defendants 5 oppose Plaintiff’s motion and move to dismiss. ECF No. 17. The Court grants the
6 motion to dismiss because Plaintiff’s claims are unripe, the Younger doctrine 7 requires abstention, Plaintiffs have not stated a plausible as-applied First 8 Amendment challenge, and Plaintiffs’ First Amendment and Due Process 9 challenges are without merit. The Court declines to award attorneys’ fees.
10 I. Legal Standard 11 Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may 12 move to dismiss a complaint for “failure to state a claim upon which relief can be
13 granted.” A Rule 12(b)(6) motion will be denied if the plaintiff alleges “sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 15 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 16 Twombly, 550 U.S. 544, 570 (2007)). While the plaintiff’s “allegations of material
17 fact are taken as true and construed in the light most favorable to the plaintiff,” the 18 plaintiff cannot rely on “conclusory allegations of law and unwarranted inferences 19 . . . to defeat a motion to dismiss for failure to state a claim.” In re Stac Elecs. Sec.
20 Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation and brackets omitted). That is, 1 the plaintiff must provide “more than labels and conclusions, and a formulaic 2 recitation of the elements.” Twombly, 550 U.S. at 555.
3 When deciding a motion to dismiss, the Court’s review is limited to the 4 complaint, documents incorporated into the complaint by reference, and matters 5 subject to judicial notice. Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d
6 1049, 1061 (9th Cir. 2008). 7 A. Ripeness 8 Ripeness is a justiciability doctrine designed “to prevent the courts, through 9 avoidance of premature adjudication, from entangling themselves in abstract
10 disagreements over administrative policies, and also to protect the agencies from 11 judicial interference until an administrative decision has been formalized and its 12 effects felt in a concrete way by the challenging parties.” Nat'l Park Hosp. Ass'n v.
13 Dep't of Interior, 538 U.S. 803, 807–08 (2003) (citations omitted). The ripeness 14 doctrine is “drawn both from Article III limitations on judicial power and from 15 prudential reasons for refusing to exercise jurisdiction[.]” Id. at 808 (citation 16 omitted); see also Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
17 1138 (9th Cir. 2000) (“[T]he ripeness inquiry contains both a constitutional and a 18 prudential component.”) (internal quotations and citations omitted). 19 The constitutional aspect of ripeness collapses with the injury-in-fact prong
20 of standing. Id. “Whether framed as an issue of standing or ripeness, an injury[- 1 in-fact] must involve ‘an invasion of a legally protected interest that is (a) concrete 2 and particularized, and (b) actual or imminent, not conjectural or hypothetical.’”
3 Twitter, Inc. v. Paxton, 56 F.4th 1170, 1173 (9th Cir. 2022) (quoting Lujan v. Defs. 4 of Wildlife, 504 U.S. 555, 560 (1992)). 5 By contrast, prudential ripeness requires courts to evaluate “the fitness of the
6 issues for judicial decision and the hardship to the parties of withholding court 7 consideration.” Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010) 8 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). “A claim is fit for 9 decision if the issues raised are primarily legal, do not require further factual
10 development, and the challenged action is final.” Id. (internal quotations and 11 citations omitted). 12 Plaintiffs’ claims are constitutionally unripe because they fail to allege a
13 cognizable injury with concreteness and particularity. Plaintiffs Eggleston, Siler, 14 and the unknown Doe physicians have not been sanctioned for their speech by the 15 Commission. See Twitter, 56 F.4th at 1173-74 (although the requirements of 16 ripeness are applied “less stringently in the context of First Amendment claims,” a
17 plaintiff may not “nakedly assert[ ] that his or her speech was chilled”) (internal 18 quotations and citations omitted). While Plaintiffs allege that the Commission’s 19 actions have a chilling effect, Plaintiffs have in fact continued to press their
20 narratives about COVID-19 while Commission proceedings have been ongoing. 1 See ECF No. 17 at 13 (describing how Dr. Eggleston continued to publish false 2 claims about COVID after the filing of the Statement of Charges against him).
3 This tends to cut against any argument that the Commission’s investigations have 4 actually chilled Plaintiffs’ speech. Plaintiffs’ argument that the Commission’s 5 investigations or imposition of sanctions might chill their speech in the future is
6 likewise impermissibly speculative. 7 Plaintiffs Stockton, Moynihan, and CHD’s and its members’ claims are also 8 based on speculation and conjecture. The remaining Plaintiffs claim they are 9 injured by the alleged chill of licensed physicians presenting an alternative
10 narrative about COVID. But Plaintiffs have not shown that they are impeded from 11 otherwise accessing this information, or that Drs. Eggleston and Siler’s speech has 12 been or will likely be chilled by the Commission’s actions.
13 Plaintiffs’ claims are also prudentially unripe. Plaintiffs seek to enjoin non- 14 final agency actions that are contingent upon future factual developments, and 15 Plaintiffs have not otherwise established that hardship would result from the Court 16 declining to exercise jurisdiction as those proceedings are ongoing. In evaluating a
17 claim of hardship, a court must consider whether abstaining from reviewing would 18 “require[ ] an immediate and significant change in plaintiffs’ conduct of their 19 affairs.” Wolfson, 616 F.3d at 1060 (internal quotations and citations omitted).
20 Plaintiffs have not established that their conduct has changed in the interim of 1 Commission proceedings or that their behavior is likely to change otherwise. 2 Accordingly, Plaintiffs’ claims are nonjusticiable.
3 B. Younger Abstention 4 The Younger abstention doctrine also requires this Court to abstain from 5 considering Plaintiffs’ claims. Under Younger, a court may not hear claims for
6 equitable relief while state proceedings are pending. Younger v. Harris, 401 U.S. 7 37, 41 (1971). In the Ninth Circuit, Younger requires federal courts to abstain from 8 hearing claims for equitable relief when: 9 (1) [T]here is an ongoing state judicial proceeding; (2) the proceeding implicates important state interests; (3) there is an adequate opportunity 10 in the state proceedings to raise [federal] constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical effect of 11 enjoining the ongoing state judicial proceedings.
12 Page v. King, 932 F.3d 898, 901-02 (9th Cir. 2019) (citation omitted). Further, 13 “even if Younger abstention is appropriate, federal courts do not invoke it if there 14 is a ‘showing of bad faith, harassment, or some other extraordinary circumstance 15 that would make abstention inappropriate.’” Id. (citation omitted). Additionally, 16 there is a recognized “irreparable harm” exception to Younger, under which courts 17 may refrain from abstention in “extraordinary circumstances where the danger of 18 irreparable loss is both great and immediate.” World Famous Drinking Emporium, 19 Inc. v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987).
20 Plaintiffs’ arguments that the threshold Younger elements are not met in this 1 case contravene caselaw directly on point. See Alsager v. Bd. of Osteopathic Med. 2 & Surgery, 945 F. Supp. 2d 1190 (W.D. Wash. 2013), aff’d, 573 F. App’x 619 (9th
3 Cir. 2014); see also Amanatullah v. Colorado Bd. of Med. Examiners, 187 F.3d 4 1160 (10th Cir. 1999). As those cases make plain, active state medical board 5 investigations and hearings are ongoing state judicial proceedings; the regulation
6 of medical practice is an important state issue; and federal constitutional challenges 7 to medical board determinations may be raised on appeal in state court. Alsager, 8 945 F. Supp. 2d at 1195–96. 9 All Younger elements are met here. Medical disciplinary board hearings
10 constitute state proceedings, and since none of the Plaintiffs have completed the 11 hearing process, the proceedings are ongoing; medical board disciplinary 12 proceedings clearly implicate an important state interest in ensuring adequate
13 healthcare; and Washington law provides Plaintiffs with an opportunity to raise 14 federal constitutional challenges on appeal to Washington state courts. See RCW 15 18.130.140. Additionally, a hearing on the merits of Plaintiffs’ claims would 16 enjoin the ongoing state proceedings, which would violate the Ninth Circuit’s
17 implied fourth element to the abstention doctrine. AmerisourceBergen Corp. v. 18 Roden, 495 F.3d 1143, 1148–49 (9th Cir. 2007) (citation omitted). 19 Plaintiffs’ claims to the Younger irreparable harm exception are also without
20 merit. The Ninth Circuit has applied the exception only where a person’s physical 1 liberty will not be vindicated after trial. See Bean v. Matteucci, 986 F.3d 1128, 2 1133–34 (9th Cir. 2021). Plaintiffs’ claims of harm are insufficient to establish the
3 extraordinary circumstances required to apply the exception. 4 Moreover, this Court has already ruled that Dr. Eggleston’s effort to 5 terminate the Commission’s investigation of him was precluded by the Younger
6 abstention doctrine. Wilkinson v. Rodgers, 1:23-CV-3035-TOR, 2023 WL 7 4410936 (E.D. Wash. July 7, 2023). Thus, Dr. Eggleston is collaterally estopped 8 from arguing otherwise in this proceeding. 9 Consequently, this Court would be required to abstain from exercising
10 jurisdiction. 11 C. Failure to State Plausible Claim 12 Plaintiffs have also failed to state a plausible as-applied First Amendment
13 claim based on the Commission’s investigations into any physicians. The 14 Commission’s investigations regulate professional conduct, with only an incidental 15 impact on speech. Although Plaintiffs’ challenges to the investigations arise out of 16 the COVID-19 pandemic, it is within the State’s long-recognized authority to
17 regulate medical professionals, and that authority does not run afoul of the First 18 Amendment. Critically, “States may regulate professional conduct, even though 19 that conduct incidentally involves speech.” Tingley v. Ferguson, 47 F.4th 1055,
20 1074-75 (9th Cir. 2022) (citation omitted). 1 While the Commission’s investigations and prosecutions are ongoing, there 2 is nothing for this Court to review. The Commission’s investigations are narrowly
3 tailored to achieve the compelling government interest in regulating medical 4 professionals and protecting the public health. Thus, Plaintiffs have failed to state 5 a plausible claim.
6 D. First Amendment Challenges 7 Even if the ripeness and abstention doctrines did not create a barrier to 8 judicial review and Plaintiffs had presented a plausible as-applied First 9 Amendment challenge, this Court still could not grant them relief on their First
10 Amendment claims. 11 As discussed above, the Commission may fully regulate professional 12 conduct of physicians licensed to practice in this state. States may regulate
13 professional conduct, even though that conduct incidentally involves speech. 14 Tingley v. Ferguson, 47 F.4th 1055, 1074 (9th Cir. 2022). “[C]onduct may 15 indicate unfitness to practice medicine if it raises reasonable concerns that the 16 individual may abuse the status of being a physician in such a way as to harm
17 members of the public, or if it lowers the standing of the medical profession in the 18 public's eyes.” Haley v. Med. Disciplinary Bd., 117 Wash. 2d 720, 733 (1991). 19 The Commission’s regulation of medical professionals does not violate the First
20 Amendment. Accordingly, Plaintiffs’ First Amendment facial challenges or as- 1 applied challenges to the Commission’s authority must fail. 2 As discussed in the preceding sections, the other Plaintiffs who are not
3 subject to the Commission have also failed to articulate a First Amendment 4 violation. The State has not prevented them from hearing what they want to hear. 5 As such, Plaintiffs’ First Amendment claims must be dismissed.
6 E. Due Process Challenges Fail 7 Plaintiffs contend that it violates their procedural and substantive due 8 process rights that: (1) they cannot raise a constitutional challenge to the 9 Washington Medical Commission’s disciplinary rules until a state court reviews
10 the proceedings; and (2) state courts have declined to enjoin their ongoing 11 disciplinary proceedings. ECF No. 14 at ¶¶ 20-22, 62–71. 12 Numerous cases hold that “judicial review of state agency decisions
13 provides a sufficient opportunity to raise federal claims, even when the state 14 agency may not consider those claims in the first instance.” See e.g., Alsager v. 15 Bd. of Osteopathic Med. & Surgery, 573 Fed. App. 619, 620–21 (9th Cir. 2014). 16 Plaintiffs have failed to show any due process violation. Plaintiffs’ citation to
17 certain cases are inapposite and do not apply to the issue before the Court. 18 Plaintiffs’ due process challenges therefore fail and must be dismissed. 19 F. Not Entitled to Preliminary Injunction
20 To prevail on their motion for a preliminary injunction, Plaintiffs must 1 demonstrate (1) a likelihood of success on the merits, (2) a likelihood of 2 irreparable injury if the injunction does not issue, (3) that a balancing of the
3 hardships weighs in their favor; and (4) that a preliminary injunction will advance 4 the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008) 5 (citation omitted).
6 Plaintiffs have failed to satisfy the four prerequisites for a preliminary 7 injunction, even if this Court had jurisdiction to proceed. The request for an 8 injunction is therefore denied. 9 II. Amendment
10 Federal Rule of Civil Procedure 15(a) provides that “a party may amend its 11 pleading only with the opposing party’s written consent or the court’s leave,” 12 which “[t]he court should freely give . . . when justice so requires.” Fed. R. Civ. P.
13 15(a)(2). The Ninth Circuit has directed that this policy be applied with “extreme 14 liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 15 2003) (citation omitted). In ruling upon a motion for leave to amend, a court must 16 consider whether the moving party acted in bad faith or unduly delayed in seeking
17 amendment, whether the opposing party would be prejudiced, whether an 18 amendment would be futile, and whether the movant previously amended the 19 pleading. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).
20 “Absent prejudice, or a strong showing of any of the remaining [ ] factors, there 1 exists a presumption under Rule 15(a) in favor of granting leave to amend.” C.F. 2 ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir. 2011)
3 (citation omitted) (emphasis in original). 4 Here, Plaintiffs’ FAC fails to address any of the deficiencies identified by 5 the Court. Additionally, further amendment would be futile given the stage of the
6 underlying administrative proceedings. Therefore, Plaintiffs are not granted leave 7 to amend, and the FAC must be dismissed with prejudice. 8 III. Attorneys’ Fees 9 Defendants seek attorneys’ fees under 42 U.S.C. § 1988(b). Under that
10 statute, the court, in its discretion, may allow the prevailing party reasonable 11 attorney’s fee as part of the costs. But attorneys’ fees should only be awarded to a 12 prevailing defendant when the court finds that the plaintiffs’ action “was frivolous,
13 unreasonable, or without foundation, even though not brought in subjective bad 14 faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Here, 15 the Court finds this lawsuit is unwarranted given the stage of the administrative 16 proceedings, but does not find it frivolous, unreasonable, or without foundation.
17 Accordingly, attorneys’ fees are denied. 18 // 19 //
20 // 1]; ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiffs’ Motion for Preliminary Injunction, ECF No. 15, is DENIED. 3 Plaintiffs’ First Amended Complaint is dismissed with prejudice. 4 2. Defendants’ Motion to Dismiss, ECF No. 17, is GRANTED. 5 The District Court Executive is directed to enter this Order, enter Judgment 6|| in favor of Defendants, furnish copies to counsel, and CLOSE the file. 7 DATED May 22, 2024. CO a): Se Luts 0. Kiet 9 ne Ke THOMAS O. RICE <> United States District Judge 10 11 12 13 14 15 16 17 18 19 20