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Court of Appeals Decisions

Newport Aeronautical Sales v. Dep't of the Air Force, No. 10-5037, 2012 WL 2892372 (D.C.Cir. July17, 2012) (Garland, J.). Holding: Affirming the district court's decision that 10 U.S.C. §10(a) is a withholding statute under Exemption 3 and that the Air Force properly withheld the technical orders at issue under that statute. The D.C. Circuit finds that the case is not mooted by the Air Force's production of unredacted copies of all the requested records under DOD's Directive 5230.25, rather than the FOIA. The D.C. Circuit concludes that, under the standard that it set forth in Payne Enterprises, Inc. v. United States, plaintiff's challenge to the Air Force's "practice of denying FOIA requests for data that does not depict 'critical technology,' and thus requiring [plaintiff] to seek the data under the restrictive terms of Directive 5230.25" is not moot. The D.C. Circuit notes that plaintiff specifically takes issue with the requirement that in order "to obtain technical data governed by the Directive, a qualified contractor [such as plaintiff] must sometimes identify a specific bid or contract that the data will support" at least when "release 'may jeopardize an important technological or operational military advantage,'" which plaintiff often cannot establish. The D.C. Circuit finds that plaintiff "has . . . shown that it will suffer continuing injury from this alleged unlawful policy [because] its business depends on continually requesting and receiving documents that the policy permits the Air Force to withhold in the absence of bid or contract information that [plaintiff] cannot always provide; and the Air Force has no intention of abandoning that policy because it does not believe the policy violates FOIA."

Yonemoto v. VA, No. 10-15180, 2012 U.S. App. LEXIS 1108 (9th Cir. Jan.18, 2012) (Berzon,J.) (amended op.). Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings. The Ninth Circuit holds that the district court improperly concluded that the VA's offer to produce certain emails to plaintiff in an unredacted form in his capacity as an agency employee while placing certain restrictions on his distribution mooted his FOIA claims to those records. The Ninth Circuit finds that "[u]nder the FOIA, [plaintiff is] entitled to the records unencumbered by restrictions on further use or dissemination" and determines that "[a]ccess as a VA employee entails restrictions on dissemination, and so does not provide access granted by the FOIA." The Ninth Circuit rejects the VA's argument that "because [plaintiff] has not identified a way in which he wanted to use the information that would have contravened [the agency's rules governing employees' dissemination of restricted information], the restrictive terms of the VA's offer of disclosure would not have effectively limited his use of the information." Instead, the Ninth Circuit finds that "[a] requestor's purpose for requesting the documents or his intended use of the information sought does not matter under the FOIA" and therefore "has no bearing on whether or not his claim is moot." As to the VA's argument that the Ninth Circuit's prior ruling in this case precluded it from reexamining the issue of mootness, the Ninth Circuit finds that its earlier decision did not take into consideration that the alternate means of access to the emails placed restrictions on plaintiff's ability to disseminate them. The Ninth Circuit remands the matter to "the district court for it to rule on the propriety of the VA's claimed exemptions in the first instance."

Williams & Connolly v. SEC, 662 F.3d 1240 (D.C. Cir. 2011) (Randolph, J.). Holding: Affirming the judgment of the district court that the controversy is moot as to the eleven sets already provided to plaintiff and holding that work-product protection for the remainder of the notes was not waived by disclosure of the eleven sets. With respect to plaintiff's argument that attorney work-product protection has been waived for eleven of the 114 sets of notes which DOJ released in connection with the underlying criminal trial, the D.C. Circuit concludes that "an agency has no obligation to release documents to a requester when another agency has already given the same requester the same documents." Moreover, the D.C. Circuit finds that "[b]ecause the Department of Justice already turned over to [plaintiff] eleven sets of notes pursued in this appeal [in connection with the criminal prosecution], the controvery is moot with respect to those documents [in the instant FOIA action]."

Yonemoto v. VA, No. 10-15180, 2011 WL 3606596 (9th Cir. Aug. 17, 2011) (Berzon, J.). Holding: Reversing the district court's decision that the VA's offer to provide certain emails to plaintiff in an unredacted form with restrictions on distribution mooted his FOIA claims, and remanding for court to consider the VA's claims of exemption on those records; vacating district court's decision as to certain withholdings under Exemption 6, and remanding for further consideration of those withholdings. The Ninth Circuit holds that the district court improperly concluded that the VA's offer to produce certain emails to plaintiff in an unredacted form in his capacity as an agency employee while placing certain restrictions on his distribution mooted his FOIA claims to those records. The Ninth Circuit finds that "[u]nder the FOIA, [plaintiff is] entitled to the records unencumbered by restrictions on further use or dissemination" and determines that "[a]ccess as a VA employee entails restrictions on dissemination, and so does not provide the access granted by the FOIA." The Ninth Circuit rejects the VA's argument that "because [plaintiff] has not identified a way in which he wanted to use the information that would have contravened [the agency's rules governing employees' dissemination of restricted information], the restrictive terms of the VA's offer of disclosure would not have effectively limited his use of the information." Instead, the Ninth Circuit finds that "[a] requestor's purpose for requesting the documents or his intended use of the information sought does not matter under the FOIA" and therefore "has no bearing on whether or not his claim is moot." As to the VA's argument that the Ninth Circuit's prior ruling in this case precluded it from reexamining the issue of mootness, the Ninth Circuit finds that its earlier decision did not take into consideration that the alternate means of access to the emails placed restrictions on plaintiff's ability to disseminate them. The Ninth Circuit remands the matter to "the district court for it to rule on the propriety of the VA's claimed exemptions in the first instance."

Furrow v. BOP, No. 10-1628, 2011 WL 1740067 (7th Cir. May 4, 2011) (unpublished disposition). Holding: Vacating district court's decision dismissing the action on mootness grounds; and remanding for further proceedings. The Seventh Circuit vacates the decision of the district court dismissing the case on mootness grounds and remands the case for further proceedings. Contrary to the district court's finding that "the agency 'provided [plaintiff] or made available to him for his inspection all the agency records he requested, except for those which [he] does not contend have been improperly withheld,'" the Circuit concludes that the record demonstrates that "a case or controversy remains" because plaintiff alleges that "the agency has not provided everything [he] wants, and he disputes the validity of the exemptions the BOP claims." The Circuit notes that "BOP did not give the district court any information about the nature of the documents withheld and the exemptions asserted as to each document, nor did the agency take the alternative approach of submitting the undisclosed documents to the court for in camera inspection and evaluation." The Circuit finds that until BOP either substantiates its claims of exemption or turns over all requested records to plaintiff, a "redressable dispute remains between the parties."

District Court Decisions

Pearson v. SSA, No. 4:12-CV-384, 2012 U.S. Dist. LEXIS 182897 (E.D. Mo. Dec. 31, 2012) (Jackson, J.).  Disposition: Granting defendant's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).  The court determines that plaintiff's claim is now moot.  Plaintiff filed a FOIA request in order to obtain the name of the ALJ assigned to his disability hearing prior to the hearing date.  SSA responded to plaintiff's FOIA request on April 4 and only revealed its policy of not disclosing the name of the ALJ until the date of the hearing.  The hearing occurred on April 19and the plaintiff accordingly learned the information he sought.  The court finds that his claim is now moot because "[t]he controversy between the parties no longer exists."  The court also rejects plaintiff's assertion "that his claim falls under an exception to the mootness doctrine, because it is 'capable of repetition, yet evading review.'"  The court agrees that "it is highly unlikely that a court would reach the merits of plaintiff's claim before the day of the ALJ hearing," and that "[i]n this sense, plaintiff's claim will evade review of the courts."  However, it finds that the possibility that his claim is "capable of repetition" is too remote. The court reasons that "[t]he SSA would have to make an unfavorable determination before [plaintiff] could appeal to an ALJ and there is no guarantee that [plaintiff] would again be dissatisfied by the agency's determination of his entitlement to benefits.  Furthermore, if plaintiff again had occasion to request the name of an ALJ, it is possible that the SSA would issue a timely response to plaintiff's request."

Am. Bottom Conservancy v. U.S. Army Corps of Eng'rs, No. 4:12-CV-1800 TIA, 2012 U.S. Dist. LEXIS 181747 (E.D. Mo. Dec. 26, 2012) (Adelman, J.). Holding: Granting defendant's motion to dismiss second cause of action.The Plaintiff's second cause of action complains that the defendant failed to respond to a FOIA request. The court concludes: "[T]he Defendant subsequently responded to the FOIA request, rending Plaintiff's claim moot."

Sieverding v. DOJ, No. 11-1032 (JDB), 2012 WL 6608573 (D.D.C. Dec. 19, 2012) (Bates, J.). Holding: Granting defendant's motion to dismiss all FOIA claims. The court dismisses plaintiff's complaint against the FBI as moot because the FBI released the responsive documents in their entirety;plaintiff did not appeal the FBI's response, had not asserted that the FBI's search was inadequate, and did not address the argument that this claim is now moot.

Davidson v. BOP, No. 11-CV-309-KSF, 2012 WL 5421161 (E.D. Ky. Nov. 6, 2012) (Forester, J.). Holding: Granting BOP's motion for summary judgment and denying plaintiff's motion for summary judgment. The court grants BOP's motion for summary judgment, noting that "[t]he case-or-controversy requirement continues through all stages of federal judicial proceedings, trial and appellate." The court notes that plaintiff 's complaint sought a response to his FOIA request and that "BOP has since compiled 372 pages of documents responsive to his request and notified him that it will provide the documents upon prepayment of the $37.20 copying fee." "Admittedly, more than two years have passed since [plaintiff] first submitted his FOIA request in March 2010. But that delay does not change the fact that [plaintiff's] claims are now moot. … BOP's earlier failure to respond resulted from a good faith mistake by a former employee. While that delay is regrettable, even a two-year delay in responding to a FOIA request does not warrant judicial relief."The court finds that plaintiff's complaint is now moot. Plaintiff's "complaint sought only a response to his FOIA request from the BOP, relief which he has now received, and any future challenge to the sufficiency of that response is both premature and a matter outside the scope of this proceeding."

ACLU of S. Cal. v. DHS, No. 11-10148, 2012 U.S. Dist. LEXIS 154893 (C.D. Cal. Oct. 25, 2012) (Wright, J.). Holding: Granting motion for summary judgment with regard to the adequacy of DHS's search and denying motion for summary judgment with regard to the adequacy of ICE's search.The court finds that plaintiff's motion for summary judgment with regard to defendants' denial of plaintiff's fee waiver request is moot. Defendants granted the request for a fee waiver after the filling of plaintiff's first amended complaint.

Heily v. DOD, No. 09-1230, 2012 WL 4788385 (D.D.C. Oct. 9, 2012) (Walton, J.). Holding: Plaintiff's claims are dismissed as moot. While the defendant's motions regarding plaintiff's other claims were pending, the plaintiff received the requested documents. "The plaintiff's receipt of the requested documents thus renders his claim under the FOIA moot."

Varley v. BOP, No. 11-507, 2012 U.S. Dist. LEXIS 141039 (D.D.C. Sept. 30, 2012) (Wilkins, J.). Holding: Denying defendant's motion for summary judgment and motion to dismiss; granting plaintiff's cross-motion for summary judgment and ordering defendant to provide the plaintiff with an unredacted hardy copy of his SMCD form. The court denies BOP's claim that "the matter is moot" when it allowed plaintiff to view requested document, but not to obtain a copy based on a BOP internal policy. The court finds "that under the unique circumstances of this case," the plaintiff "is entitled to a hardcopy of the requested document." The defendant "relies on an internal policy to withhold a hardcopy of the document from [plaintiff]." The policy prohibits inmates from possessing certain documents because they "may contain" information, which "if disclosed might endanger the inmate's physical safety." However, "there is no evidence before the Court that the SMCD contains information that falls within the stated basis for the BOP policy."

Carson v. U.S. Merit Sys. Protect. Bd., No. 11-399, 2012 WL 2562370 (E.D. Tenn. June 29, 2012) (Phillips,J.). Holding: Granting defendant's motion to dismiss with prejudice where plaintiff only challenged the tardiness of the agency's response. The court dismisses as moot plaintiff's complaint where he "challenges only the tardiness of the [Merit Systems Protection Board's (MSPB's)] response to his FOIA request." The court notes that "[p]laintiff has submitted no evidence to suggest that the MSPB was not acting in good faith regarding the attention given to this request or the time of the response." The court concludes that "[o]nce MSPB sent [its] initial response to plaintiff's FOIA request, the tardiness issue was resolved, and the case became moot, thereby divesting the court of subject matter jurisdiction."

Judicial Watch, Inc. v. U.S. Air Force, No. 11-932, 2012 WL 1190297 (D.D.C. Apr. 10, 2012) (Rothstein,J.). Holding: Concluding that defendant's production of a record in one format does not moot plaintiff's claim for metadata underlying another document format; deferring ruling on the parties' motions for summary judgment; and ordering supplemental briefings on the issue as to whether metadata constitutes an "agency record" under the FOIA. The court determines that defendant's production of the requested letter in Adobe PDF format does not moot plaintiff's request for metadata embedded in a different format. At the outset, the court notes that "[t]he parties agree that metadata has been 'defined as information describing the history, tracking or management of an electronic document.'" Despite Air Force's argument that any metadata was already produced to plaintiff by virtue of the release of the PDF version of the letter, the court finds that plaintiff's request "encompass[ed] both the metadata embedded in the Adobe PDF file and that embedded in the Microsoft Word document file," which was the software in which the letter was initially composed. The court finds that "[t]he Microsoft Word document would carry its own unique metadata, and, if [plaintiff] is entitled to the metadata at all (an issue to be decided), that metadata would be encompassed by the original request."

Baker v. DHS, No. 11-588, 2012 U.S. Dist. LEXIS 8718 (M.D. Pa. Jan.25, 2012) (Caputo, J.). Holding: Granting, in part, defendant's motion to dismiss as moot plaintiff's claim to the extent it seeks a response to the request, and denying defendant's motion to dismiss as to the withholdings made and ordering defendant to submit a Vaughn Index; and deferring ruling as to plaintiff's entitlement to attorney's fees. The court concludes that "[p]laintiff's claim, to the extent that it seeks to compel the Secret Service to respond to [his] FOIA request, was rendered moot by the Secret Service's eventual document production." However, as to plaintiff's claim that the agency failed to justify its withholdings, the court finds that the claim is not moot, and "direct[s] the Defendant to submit a Vaughn Index" to enable the court to determine that information at issue was properly withheld. The court finds that the declaration submitted by the Secret Service "offers neither the Court nor the Plaintiff any opportunity to make a meaningful appraisal as to whether the stated exemptions apply, and forces reliance solely on the agency's conclusory determination."

Bonilla v. DOJ, No. 11-20450, 2012 WL 204202 (S.D. Fla. Jan.24, 2012) (Cooke, J.). Holding: Granting defendants' motion to dismiss plaintiff's claim against the Secret Service as it has been mooted by the release of documents. Because "[p]laintiff's Complaint asserts [against the Secret Service] only claims regarding the untimely disclosure of documents requested pursuant to the FOIA" and the Secret Service "has now provided such non-exempt responsive documents to Plaintiff," the court concludes that "[t]here is no longer a live case or controversy before [it] with respect to Plaintiff's claims against the Secret Service." As such, the court grants Secret Service's motion to dismiss on the basis that it lacks subject matter jurisdiction over those claims.

Citizens for Resp. & Ethics in Wash. v. FEC, No. 11-951, 2011 WL 6880679 (D.D.C. Dec. 30, 2011) (Kollar-Kotelly, J.). Holding: Denying FEC's motion to dismiss for lack of subject matter jurisdiction; and granting FEC's motion for summary judgment for failure to exhaust administrative remedies. The court rejects FEC's argument that "its production of any documents in response to the request moot's [plaintiff's] complaint, which sought to compel some response to [its] request." Although the court finds that "to the extent that Plaintiff's Complaint challenged the timeliness of their production, it is now moot," it refuses "to dismiss the Complaint in its entirety, because the Complaint does assert a substantive challenge under § 552(a)(3)(A)." Accordingly, the court denies defendant's motion to dismiss and finds that it retains subject matter jurisdiction over the case.

N.Y. Times Co. v. FBI, No. 10-7920, 2011 WL 5346031 (S.D.N.Y. Nov. 8, 2011) (Patterson,J.). Holding: Granting defendants' motion to dismiss for lack of subject matter jurisdiction where all responsive records were released to plaintiff in an unredacted format, and denying plaintiffs' motion for summary judgment seeking a broad declaration by the Court that all "assessment statistics," not merely those sought in the Complaint, are public records under the FOIA and subject to disclosure. As an initial matter, the court notes that plaintiff's Complaint in this matter is confined to his narrowed FOIA request for specific "assessment statistics" that were provided by the FBI to the Senate Judiciary Committee in response to a Congressional inquiry. As such, the court finds "[p]laintiffs' summary judgment motion [seeking a declaration by the Court that all assessment statistics are public records under the FOIA and thus subject to disclosure] attempts to broaden their claims to all assessment statistics in an impermissible attempt to avoid mootness." The court concludes that because "the FBI's March 7, 2011 unredacted release of the Assessment Statistics provided to the Senate Judiciary Committee complied with [plaintiffs'] FOIA request in accordance with his later amended request, the [plaintiffs' initial] FOIA Request is now moot." The court rejects plaintiffs' arguments their claims are not moot. Instead, the court finds that "[d]efendant's initial withholding under Exemption2 was not improper under circuit court case law at the time Exemption 2 was invoked." As to the assertion of Exemption7(E), the court notes that "the FBI released the requested document after a review by its subject matter experts revealed that the release of the assessment statistics requested by [plaintiffs] would no longer harm a protected interest." The court also dismisses plaintiffs' contention that the case is not moot because "the FBI is engaged in the unlawful practice of the unwarranted withholding of assessment statistics pursuant to FOIA exemptions." Instead, the court finds that "Plaintiffs have failed to provide evidence of prior similar instances to support its claim" and notes that it "would be unwise [for the court] to issue a declaration [on the matter]... because 'such a declaration would be an advisory opinion which federal courts may not provide."

Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964 (N.D. Cal. Oct. 12, 2011) (Grewal,Mag.). Holding: Dismissing FOIA claims brought against individual defendants; holding that party who did not submit FOIA request at issue has standing to assert a "pattern or practice" claim under FOIA; granting declaratory relief that defendant engaged in pattern or practice of failing to abide by FOIA; granting plaintiffs' request for injunctive relief; concluding that defendant is required to release certain non-exempt information previously withheld pursuant to Exemption 5; concluding defendant's FOIA processing policy violates a previous settlement agreement as well as the terms of the Administrative Procedure Act (APA) and the FOIA; dismissing a claim brought under APA; and granting partial summary judgment to defendants on plaintiffs' equal protection claims. The court rejects defendant's contention that plaintiffs' claims regarding "the denial of Hajro's expedited request, the failure to respond within the 20-day statutory time limit, and the failure to notify Hajro of any 'unusual circumstances' that would warrant an extension" are moot. Rather, the court finds that "Plaintiffs' claims are not moot insofar as they raise the specter of a pattern or practice that remains unaddressed, even as the particular requests originally forming the basis for the challenge are no longer active." Furthermore, the court determines that "[t]he likelihood that USCIS will repeat the same violations against Plaintiffs and in the broader application of its responses to such requests militates against a finding of mootness."

Carson v. SEC, No. 09-615, 2011 U.S. Dist. LEXIS 46974 (E.D. Tenn. May 2, 2011) (Phillips, J.). Holding: Dismissing plaintiff's complaint as moot. The court holds that "[a]s petitioner's complaint challenges only the tardiness of the SEC's response to his FOIA request, his claim was rendered moot by the agency's [subsequent] response that no responsive documents could be located." "Because the petitioner has already obtained all the relief that he seeks in his complaint, there is no live controversy for this court to adjudicate."

Carson v. DOJ, No. 10-56, 2011 U.S. Dist. LEXIS 47033 (E.D. Tenn. May 2, 2011) (Phillips,J.). Holding: Dismissing plaintiff's complaint as moot. The court concludes that petitioner's complaint "was rendered moot by the agency's responses" where plaintiff's complaint only alleges that three DOJ components failed to timely respond to his FOIA requests. The court further notes that "[p]etitoner has submitted no evidence to suggest that any of these agencies was not acting in good faith regarding the attention given to this requests or the time of the responses."

Carson v. U.S. Office of Special Counsel, No. 10-57, 2011 U.S. Dist. LEXIS 46951 (E.D. Tenn. May 2, 2011) (Phillips, J.). Holding: Dismissing plaintiff's complaint as moot. The court concludes that petitioner's complaint was rendered moot where it "challenges only the tardiness of OSC's response to his FOIA request," and, subsequent to the filing of this suit, OSC "released in full all records responsive to his request." The court notes that "[t]here is nothing more OSC can do to respond to petitioner's FOIA request, and the relief he seeks through his complaint has been fully provided."

Muset v. Comm'rIshimaru, No. 07-4083, 2011 U.S. Dist. LEXIS 47587 (E.D.N.Y. Apr. 30, 2011) (Vitaliano, J.). Holding: Dismissing plaintiff's FOIA claim as moot as to the records released by IRS and dismissing for lack of subject matter jurisdiction as to the withheld documents due to plaintiff's failure to exhaust his administrative remedies. The court finds that plaintiff's "claim for relief under FOIA [based on agency delay] became moot when he received the requested documents" after the action was filed.

McKinley v. FDIC, No. 10-420, 2010 WL 5209337 (D.D.C. Dec. 23, 2010) (Sullivan, J.). The court finds that plaintiff's claims are not moot where the FDIC responded to his requests but issues regarding the adequacy of the agency's search for responsive documents and the validity of its claims of exemption remained.

Allen v. U.S. Dep't of Educ., No. 10-1101, 2010 WL 5080019 (D.D.C. Dec. 14, 2010) (Collyer, J.). The court dismisses plaintiff's FOIA claim as moot where she "has not alleged that she made a formal FOIA request" and the Department of Education has no record of receiving such a request. Moreover, the court comments that "[e]ven if [plaintiff] had made the necessary FOIA request, any FOIA claim related to the request for documents would have to be dismissed as moot, because the Government provided all relevant documents to [her]."

Bryant v. CIA, No. 09-940, 2010 WL 3833949 (D.D.C. Sept. 30, 2010) (Sullivan, J.). "Contrary to plaintiff's assertions that his claim [related to the CIA's initial denial of news media representative status] is not moot because he was only granted [such] status after the complaint was filed, the timing of the CIA's decision to grant him the status is irrelevant."

Von Grabe v. DHS, No. 09-2162, 2010 WL 3516491 (M.D. Fla. Sept. 3, 2010) (Presnell, J.). Because plaintiff received the form that he was seeking, "this Court no longer possesses subject matter jurisdiction over this case" and his claim is moot.

Yonemoto v. VA, No. 06-0378, 2009 WL 5033597 (D. Haw. Dec. 22, 2009) (Kurren, Mag.). The court denies as moot plaintiff's claim with respect to certain e-mails which VA had offered to produce in an unredacted form in his capacity as a VA employee and where plaintiff declined that offer. Since VA offered to provide plaintiff with the exact records that he seeks, "the controversy regarding these emails 'disappears and becomes moot.'"

Hart v. HHS, No. 09-076, 2009 WL 5128872 (D. Ariz. Dec. 18, 2009) (Jorgenson, J.) (adoption of magistrate's recommendation). The court adopts the magistrate's Report and Recommendation which found that plaintiffs' action is moot because defendant has discharged its duties under the FOIA by producing all requested documents. Plaintiffs provided insufficient support for their allegation that CMS has engaged in a pattern or practice of delaying responses to FOIA requests. The court agrees with the magistrate that "Defendants ‘first in, first out' practice [to handle FOIA requests] does not amount to a factual showing that Defendant continually violates the FOIA requirements." Additionally, although plaintiffs pointed out that CMS's backlog of requests has grown, the court notes that the number of FOIA requests received has also increased and that "most significantly, the data also indicates that CMS increased the number of responses processed." Lastly, the court observes that plaintiffs "d[id] not claim or show an exceptional need " which would have entitled their request to expedited processing.

Dasta v. Lappin, No. 08-1034, 2009 WL 3069681 (D.D.C. Sept. 25, 2009) (Sullivan, J.). Because BOP established that it "ha[d] released in full the records that plaintiff requested," the case is moot.


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