1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CS-360, LLC,

Plaintiff,

v.

UNITED STATES SMALL BUSINESS 

ADMINISTRATION,

Defendant.

Civil Action No. 13-0057 (CKK)

MEMORANDUM OPINION

(November 11, 2013)

Plaintiff CS-360, LLC (“CS-360” or “Plaintiff”) brings this action against Defendant 

United States Small Business Administration (“Defendant” or “SBA”) seeking a declaratory 

judgment setting aside or vacating the November 15, 2012 Order by the Office of Hearing 

Appeals of the United States Small Business Administration (“OHA”) dismissing as untimely 

Plaintiff’s appeal of the size determination conducted by the Small Business Administration. 

Presently before the Court are Defendant’s [14] Motion for Summary Judgment and Plaintiff’s 

[15] Cross-Motion for Judgment on the Record. Upon consideration of the parties’ 

submissions,1 the relevant legal authorities, and the record as a whole, the Court GRANTS 

 1 While the Court renders its decision on the record as a whole, its consideration has focused on 

the following documents: Def.’s Mot. for Summ. J., ECF No. [14] (“Def.’s MSJ”); Mem. in 

Supp. of Def.’s Mot. for Summ. J., ECF No. [14-2] (“Def.’s Mem.”); Pl’s. Cross-Mot. for J. on 

the Record, Mem. of P. & A. and Appendix, ECF No. [15] (“Pl.’s MSJ”); Def.’s Opp’n to Pl.’s 

Mot. for Summ. J., ECF No. [18] (“Pl.’s Opp’n”); Pl.’s Cross-Opp’n to Def.’s Mot. for Summ. 

J., ECF No. [19] (“Pl.’s Opp’n”); Def.’s Reply in Supp. of Mot. for Summ. J., ECF No. [20] 

(“Def.’s Reply”); Pl.’s Cross-Reply to Def.’s Opp’n to Pl.’s Mot. for Summ. J., ECF No. [21] 

(“Pl.’s Reply”); Administrative Record, ECF No. [13] (“AR SBA”). 
2

Defendant’s [14] Motion for Summary Judgment, and DENIES Plaintiff’s [15] Cross-Motion for 

Judgment on the Record.

I. BACKGROUND

In November 2009, CS-360, LLC applied to the Department of Veterans Affairs (“VA”)

for certification as a Service Disabled Veteran Owned Small Business (“SDVOSB”). See CS360, LLC v. U.S. Dep’t of Veteran Affairs, 846 F.Supp.2d 171, 175 (D.D.C. 2012). The VA 

denied Plaintiff’s application, and in January 2011, Plaintiff filed a lawsuit in this Court 

challenging the VA’s denials as arbitrary and capricious. Id. at 183-84. On March 6, 2012, this 

Court remanded the issue to the VA for further consideration and explanation. Id. at 197. The 

Court’s remand Order stated that “[w]here, as here, the district court cannot evaluate the 

challenged action on the basis of the record presented, and the agency may be able to cure any 

defects through further action, the proper course is to remand to the agency for additional 

investigation or explanation.” Id. at 192. The Court further made clear that “[o]n remand, the 

VA shall have the discretion to reopen the administrative record, to engage in additional factfinding, to supplement its explanation, and to reach the same or a different ultimate conclusion.” 

Id. In a subsequent Order, this Court clarified the extensive scope of this remand to the VA, 

explaining that although it “did not remand the case to Defendant so that the agency could 

require Plaintiff to re-apply per 38 CFR Part 74’” the Court’s remand Order “unambiguously 

provided” Defendant the freedom “to request updated information relevant to Plaintiff’s 

eligibility for inclusion in the VetBiz VIP database. In other words, Defendant may re-open the 

administrative record to collect evidence that speaks to current circumstances.” AR SBA 0102. 

“Nothing in the Court’s remand Order precludes Defendant from seeking such information.” Id.
3

 On July 19, 2012, pursuant to these Orders, the VA formally requested a small business 

size determination of CS-360 from the U.S. Small Business Administration (SBA). AR SBA

0105-0108. On September 25, 2012, SBA’s Office of Government Contracting Area II issued its 

size determination finding Plaintiff to be other than small for any size standard below $16 

million. AR SBA 0065-0078. Plaintiff received SBA’s size determination on September 26, 

2012. AR SBA 0035.

On October 26, 2012, Plaintiff filed an appeal of this size determination before SBA’s 

Office of Hearings and Appeals (“OHA”). AR SBA 0032-0044. On November 1, 2012, OHA 

issued an Order to Show Cause as to why Plaintiff’s appeal should not be dismissed as untimely 

under 13 C.F.R. § 134.304(a) because it was not filed within fifteen days after the date CS-360 

received the size determination. AR SBA 0014. Appeals from SBA size determinations are 

governed by 13 C.F.R. § 134.304(a), which states that “[s]ize appeals must be filed within 15 

calendar days after receipt of the formal size determination.” Pursuant to 13 C.F.R. §

134.304(c), “[a]n untimely appeal will be dismissed.” This regulation became effective on 

March 4, 2011 after opportunity for notice and comment. 76 Fed. Reg. 5680, 5685 (Feb. 2, 

2011). Prior to March 4, 2011, SBA’s regulations provided that “[i]f the appeal is from a size 

determination other than one in a pending procurement or pending Government property sale, 

then the appeal petition must be filed and served within 30 days after appellant receives the size 

determination.” 13 C.F.R. § 134.304(a)(2) (2009) (amended 2011).

On November 8, 2012, Plaintiff filed a response to the OHA’s Order to Show Cause, 

arguing that its appeal was timely because OHA should have applied the regulation in existence 

during the time period when Plaintiff submitted its application to the VA, which allowed thirty

days to file an appeal. AR SBA 0007-0012. Plaintiff contended that applying the current 
4

regulation to its appeal would represent a retroactive application of this rule because Plaintiff 

submitted its application to the VA in 2009, before the regulation took effect. AR SBA 0007. 

Under Plaintiff’s view, the request for the size determination, although made in 2012, was 

effectively a retroactive request to 2009-2010, because such a determination should have 

properly been made as part of Plaintiff’s initial (and only) application to the VA. Id. 

Accordingly, Plaintiff contended, it should receive the benefit of the thirty day time limit for 

appeals in effect prior to 2011. Id. 

On November 15, 2012, OHA issued an Order dismissing Plaintiff’s Appeal Petition as 

untimely. AR SBA 0002-0005. The OHA decision concluded that despite Plaintiff’s claims, 

application of the fifteen day time limit for appeals contained in 13 C.F.R. § 134.304(a)(2) would 

not represent the retroactive application of a regulation. Id. On this point, the Administrative 

Law Judge concluded:

While Appellant argues that VA should have referred this matter for a size 

determination in 2009 or 2010, the fact remains that the VA did not do so. The 

VA formally requested the size determination on July 19, 2012. The Area Office 

issued the size determination on September 25, 2012, and Appellant received it on 

September 26th. Therefore, in no way can the instant size determination be said 

to be a transaction that was completed or pending on March 4, 2011. All the 

actions concerning the size determination, from the VA’s request for it to the Area 

Office’s investigation to the issuance of the determination, took place in 2012, 

long after the March 4, 2011 effective date of the new OHA regulation on the 

commencement of size appeals. None of these actions took place prior to March 

4, 2011, nor were any of them pending on March 4, 2011. Therefore the 

procedural regulations which became effective on March 4, 2011 apply to the 

instant appeal. Under those regulations, Appellant had fifteen days to file this 

appeal, a deadline it failed to meet.

AR SBA 0004. Subsequently, Plaintiff filed this suit, arguing that the OHA’s decision to dismiss 

its appeal of the size determination as untimely was arbitrary, capricious, and contrary to law 

because it applied the current regulation to the size appeal instead of the regulation in effect 

during the 2009 time period. The parties have now filed cross-motions for summary judgment. 
5

II. LEGAL STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” However, “when a party seeks 

review of agency action under the APA [before a district court], the district judge sits as an 

appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. 

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 

56[] does not apply because of the limited role of a court in reviewing the administrative record. . 

. . Summary judgment is [] the mechanism for deciding whether as a matter of law the agency 

action is supported by the administrative record and is otherwise consistent with the APA 

standard of review.” Southeast Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010). 

A reviewing court can set aside agency action if it is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right,” or “without observance of procedure

required by law.” 5 U.S.C. §§ 706(2)(A), (C), (D). An agency’s decision may be arbitrary or 

capricious if any of the following apply: (i) its explanation runs counter to the evidence before 

the agency or is so implausible that it could not be ascribed to a difference of view or the product 

of agency expertise; (ii) the agency entirely failed to consider an important aspect of the problem 

or issue; (iii) the agency relied on factors which Congress did not intend the agency to consider; 

or (iv) the decision otherwise constitutes a clear error of judgment. Motor Vehicle Mfrs. Ass’n of 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443

(1983); accord Jicarilla Apache Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1118 (D.C. Cir.

2010). This standard of review is highly deferential to the agency; a court need not find that the 
6

agency's decision is “the only reasonable one, or even that it is the result [the court] would have 

reached had the question arisen in the first instance in judicial proceedings.” Am. Paper Inst., 

Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422, 103 S.Ct. 1921, 76 L.Ed.2d 22 (1983).

Plaintiff, as the party challenging the agency action, bears the burden of proof. Abington 

Crest Nursing & Rehab. Ctr. v. Sebelius, 575 F.3d 717, 722 (D.C. Cir. 2009) (citing City of 

Olmsted Falls v. Fed. Aviation Admin., 292 F.3d 261, 271 (D.C. Cir. 2002)). In assessing the 

merits of Plaintiff’s challenge, the Court begins with the presumption that the Commission’s

actions were valid. Grid Radio v. Fed. Commc'ns Comm'n, 278 F.3d 1314, 1322 (D.C. Cir.

2002). So long as the agency decision has some rational basis, the Court is bound to uphold it. 

Hosp. of Univ. of Penn. v. Sebelius, 634 F.Supp.2d 9, 13 (D.D.C. 2009) (citing Citizens to 

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

III. DISCUSSION

Plaintiff argues that the OHA decision denying its appeal as untimely was “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law” for two reasons. 

First, Plaintiff contends that, by rejecting the argument that application of the thirty day rule 

represents retroactive application of the provision, the OHA “entirely failed to consider an 

important aspect of the problem and offered an explanation for the decision that runs counter to 

the evidence before the agency,” State Farm, 463 U.S. at 43. Pl.’s MSJ at 9. Next, Plaintiff 

asserts that, in dismissing Plaintiff’s appeal as untimely, the OHA violated the prior version of 

13 C.F.R. § 134.304(a), providing a thirty day time limit to file an appeal. Pl.’s MSJ at 14-16.

Yet, although stated as two separate grounds for setting aside the agency action, these 

contentions resolve to a single argument. Just as it argued in its response to the OHA’s Order to 

Show Cause, Plaintiff now contends before this Court that because the request for the size 

determination to the VA was retroactive to the initial review of Plaintiff’s application in 2009 
7

and 2010, Plaintiff should enjoy the benefit of procedural regulations governing the time for 

appeal during these years. Elaborating on this argument, Plaintiff asserts that because the VA 

had issued a final denial of its only application for SDVOSB verification in November 2010, no 

application was pending before the VA at the time of the size determination. Pl.’s Opp’n at 2. 

Accordingly, Plaintiff contends, the size determination must logically relate back to the original 

application. And since this original application closed in November 2010, prior to the effective 

date of the fifteen day time limit for appeals, Plaintiff should have been given thirty days to file 

its appeal.

Admittedly, “[w]hat is and what is not a retroactive application of the law is not always 

easy to discern.” Cookeville Regional Medical Ctr. v. Leavitt, 531 F.3d 844, 847 (D.C. Cir. 

2008). Yet, as the Supreme Court has explained, “[a] statute does not operate ‘retrospectively’ 

merely because it is applied in a case arising from conduct antedating the statute’s enactment, or 

upsets expectations based on prior law.” Landgraf v. USI Film Products, 511 U.S. 244, 269, 113 

S.Ct. 1483, 128 L.Ed.2d 229 (1994) (internal citations omitted). “The conclusion that a 

particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the 

nature and extent of the change in the law and the degree of connection between the operation of 

the new rule and a relevant past event.” Id. Courts are instructed to make “a commonsense, 

functional judgment about ‘whether the new provision attaches new legal consequences to events 

completed before its enactment.’” INS v. St. Cyr, 533 U.S. 289, 321, 121 S.Ct. 2271, 150 

L.Ed.2d 347 (2001) (quoting Martin v. Hadix, 527 U.S. 343, 357-58, 119 S.Ct. 1998, 144 

L.Ed.2d 347 (1999) (quoting Landgraf, 511 U.S. at 270)).

Here, despite the general complexity involved in questions of retroactivity, the Court has 

little difficulty in concluding that OHA correctly determined that application of the fifteen day 
8

time limit to Plaintiff does not constitute retroactive application of the law. The Court need not 

engage in an intensive analysis of retroactivity here, see Landgraf, 511 U.S. at 269, because 

simply put, Plaintiff’s argument for retroactivity is founded on a faulty premise. The notion that 

Plaintiff’s size determination relates back to its initial application to the VA and accordingly 

must be treated as if it occurred in 2009 and 2010 is contradicted by the text of this Court’s 

remand Orders.

In its March 6, 2012 remand Order, this Court stated “[o]n remand, the VA shall be free 

to exercise its discretion to reopen the administrative record, to engage in additional fact-finding, 

to supplement its explanation, and to reach the same or a different ultimate conclusion.” CS-360, 

846 F.Supp.2d at 197. Accordingly, contrary to Plaintiff’s contentions, its application to the VA 

for SDVOSB verification was plainly not closed. Indeed, Plaintiff’s contention that no 

application was pending before the VA in 2012 when it requested the size determination from 

the SBA is flatly incorrect. The Court made as much clear when it stated that it was not

requiring Plaintiff to re-apply for certification. AR SBA 0102. Rather, the remand provided the 

VA an opportunity to re-open the administrative record on the existing application and add 

additional factual information based on current circumstances. Id. “Defendant remains free to 

request updated information relevant to Defendant’s eligibility,” the Court stated. Id. 

“Defendant may re-open the administrative record to collect evidence that speaks to current 

circumstances.” Id. The Court was remanding not simply for additional “explanation” but rather 

more broadly for additional “consideration” pursuant to which the VA could ultimately “reach

the same or a different ultimate conclusion.” CS-360, 846 F.Supp.2d 197 (emphasis added). 

Accordingly, Plaintiff is incorrect in claiming that the remand was strictly circumscribed and 

related back only to the 2009 and 2010 initial review of a since-closed application. This Court’s 
9

remand Order did not send the parties back in time in order to conduct a more adequate review of 

Plaintiff’s application. Rather than strictly retrospective and hypothetical, the remand was 

explicitly prospective, permitting the VA to supplement the administrative record concerning 

Plaintiff’s application with new information “that speaks to current circumstances.” AR SBA 

0102. Accordingly, Plaintiff’s suggestion that the subsequent size determination should be 

treated as though it occurred in the 2009-2010 period is unavailing. And in the absence of this 

premise, Plaintiff can no longer argue that application of the current regulation represents a 

retroactive application of the law. 

Moreover, and crucially for the arbitrary and capricious analysis, OHA did not fail to 

consider these arguments. Rather, after being presented with these arguments by Plaintiff, the 

Administrative Law Judge correctly stated that “[w]hile Appellant argues that VA should have 

referred this matter for a size determination in 2009 or 2010, the fact remains that the VA did not 

do so.” AR SBA 0004. As the OHA concluded, the mere fact that the size determination should 

have occurred in the 2009-2010 period does not lead to the conclusion that the size determination 

must be treated as if it had occurred in this time frame. Indeed, Plaintiff provides no case law in 

support of this proposition, either in this Court or in its filings before the OHA. Rather, because 

all of the conduct relevant for application of the rule governing size determination appeals

occurred in 2012, well after the effective date for the revised 13 C.F.R. § 134.304(a), the OHA

applied the current version of the regulation and dismissed Plaintiff’s appeal as untimely. The 

Court concludes that this decision was not arbitrary or capricious.

Furthermore, even assuming Plaintiff were correct that the size determination “relates 

back” to the VA’s initial 2009-2010 consideration of its application – a proposition this Court 

rejects – it would still grant summary judgment to Defendant. The principles underlying the 
10

presumption against retroactive application of laws are not offended by the application of this 

procedural rule here. In describing the basis for the presumption against retroactivity, the 

Supreme Court has stated that, “[e]lementary considerations of fairness dictate that individuals 

should have an opportunity to know what the law is and to conform their conduct accordingly . . 

. .” Landgraf, 511 U.S. at 265. “The presumption against retroactivity exists to protect settled 

expectations.” Cookeville Regional Medical Ctr., 531 F.3d at 847. “The aim of the presumption 

is to avoid unnecessary post hoc changes to legal rules on which parties relied in shaping their 

primary conduct.” Austria v. Altmann, 541 U.S. 677, 696, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). 

Courts considering whether application of a provision raises retroactivity concerns “should be 

informed and guided by ‘familiar considerations of fair notice, reasonable reliance, and settled 

expectations.’” Martin, 527 U.S. at 358 (quoting Landgraf, 511 U.S. at 270).

Consequently, in light of “the diminished reliance interests in matters of procedure”, 

“[c]hanges in procedural rules may often be applied in suits arising before their enactment 

without raising concerns about retroactivity.” Landgraf, 511 U.S. at 275. “Because rules of 

procedure regulate secondary rather than primary conduct, the fact that a new procedural rule 

was instituted after the conduct giving rise to the suit does not make application of the rule at 

trial retroactive.” Id. at 275. While “the mere fact that a new rule is procedural does not mean 

that it applies to every pending case”, id. at 275 n. 29, when it comes to rules that are “merely 

procedural in a strict sense (say, setting deadlines for filing and disposition), the natural 

expectation would be that [they] would apply to pending cases.” Lindh v. Murphy, 521 U.S. 320,

327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (internal citations omitted). See also Moore v. 

Agency for Intern. Development, 994 F.2d 874, 879 (D.C. Cir. 1993) (“Where a statute deals 

only with procedure, prima facie it applies to all actions – to those which have accrued or are 
11

pending, and to future actions.”) (quoting NORMAN J. SINGER, SUTHERLAND STATUTES AND 

STATUTORY CONSTRUCTION § 41.04, at 349 (4th ed. 1986)).

In assessing the retroactive effect of procedural rules, the D.C. Circuit has emphasized 

that “in the administrative context, a rule is retroactive if it takes away or impairs vested rights 

acquired under existing law, or creates a new obligation, imposes a new duty, or attaches a new 

disability in respect to transactions or considerations already past.” National Mining Ass’n v. 

Dep’t of Labor, 292 F.3d 849, 859 (D.C. Cir. 2002) (internal citations and quotation marks 

omitted). “The critical question is whether a challenged rule establishes an interpretation that 

‘changes the legal landscape.’” Id. (quoting Nat’l Mining Ass’n v. Dep’t of Interior, 177 F.3d 1, 

8 (D.C. Cir. 1999)). “Thus, where a rule ‘changes the law in a way that adversely affects [a 

party’s] prospects for success on the merits of the claim,’ it may operate retroactively even if 

designated ‘procedural.’” Id. at 860 (quoting Ibrahim v. District of Columbia, 208 F.3d 1032, 

1036 (D.C. Cir. 2000).

Here, however, there is little concern with applying the revised version of 13 C.F.R. §

134.304(a) to Plaintiff. Indeed, this is a rule “setting deadlines for filing” – the sort of provision 

the Supreme Court has identified as “procedural in a strict sense.” Lindh, 521 U.S. at 327. 

Despite Plaintiff’s contentions, the shift from a thirty day to fifteen day deadline does not 

“change[] the legal landscape” or “change the law in a way that adversely affects [Plaintiff’s] 

prospects for success on the merits of [its] claim.” National Mining Ass’n, 292 F.3d at 859, 860. 

The revised provision merely shifts the time limits for filing an appeal, with no effect on the 

substance of Plaintiff’s claims. See Wilson v. Pena, 79 F.3d 154, 162 (D.C. Cir. 1996) (A 

change in a limitations period for filing “does not alter the legal effect of any pre-amendment 

event” but rather “attaches legal consequences only to actions taken after the effective date of the 
12

amendment, namely to [plaintiff’s] filing or failing to file suit within a certain number of days . . 

. .”).2

Furthermore, in rejecting Plaintiff’s claim, the Court notes the especially weak nature of 

Plaintiff’s reliance and fair notice interests – the concerns at stake in retroactive application of 

laws. The underlying size determination from which Plaintiff appealed occurred more than a 

year-and-a-half after the effective date of the revised regulation. This is not a case where 

Plaintiff was blindsided by a new regulation of which it lacked proper notice. Rather, Plaintiff’s 

appeal of the size determination could not have occurred prior to the enactment of the fifteen day 

rule. Moreover, the Administrative Record reveals that prior to the time when its appeal was 

due, Plaintiff was repeatedly informed that this provision governed the timeliness of its appeal. 

See AR SBA 0077-78 (“Any person adversely affected by this decision has the right to file an 

appeal petition with the SBA’s Office of Hearings and Appeals (OHA). The specific procedures 

for filing an appeal are found at 13 CFR Part 134”); AR SBA 0098 (Court Order of October 8, 

2012 repeating the same). In fact, in the letter advising it of the size determination, Plaintiff was 

explicitly told that it had only fifteen days to file an appeal of the size determination. See AR

 2 Plaintiff’s citation to New York Energy Research and Development Authority v. Federal Energy 

Regulatory Commission, 746 F.2d 64, 66-69 (D.C. Cir. 1984) is unavailing. In that case, the 

D.C. Circuit concluded that FERC’s decision to deny an appeal as untimely under a new agency 

rule was arbitrary and capricious where the appeal would have been timely under the previous 

rule. Id. at 68. However, the case involved an express regulatory proviso which allowed 

application of the old rule to proceedings pending on the effective date, “where such use is 

warranted ‘in the interest of justice.’” Id. Here, no such proviso exists. See id. at 69 (“our 

holding rests upon the existence of a proviso that FERC put in place and thus obligated itself to 

apply where application is called for.”). Plaintiff points to the fact that here the revised 

regulation was noticed on February 2, 2011, but did not become effective until March 4, 2011 as 

support for the position that “all size determinations appealed from prior to March 4, 2011 . . . 

could be timely filed under the 30-day rule.” Pl.’s MSJ at 13. Yet the Court is unpersuaded that 

a mere month-long gap between the date a procedural change is noticed and its effective date 

compels the conclusion that the rule may not be applied to pending cases. This is particularly 

true in light of the substantial precedent discussing the limited retroactivity concerns in applying 

strictly procedural provisions to pending cases.
13

SBA 0062 (“To be timely, an appeal must be submitted to OHA in writing within 15 days of the 

date of receipt of this letter.”). Accordingly, even if Plaintiff’s size determination “relates back” 

to the initial review of its application, the principles underlying anti-retroactivity would not bar 

the application of this procedural rule here.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Defendant’s [14] Motion for 

Summary Judgment is GRANTED, and Plaintiff’s [15] Cross-Motion for Judgment on the 

Record is DENIED. An appropriate Order accompanies this Memorandum Opinion.

Dated: November 11, 2013

____/s/________________________

COLLEEN KOLLAR-KOTELLY 

United States District Judge