OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT

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0005293327
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U
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18
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June 23, 2015
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September 29, 2010
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F-2010-00666
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August 14, 2008
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APPROVED FOR RELEASED DATE: 18-Aug-2010 IN THE U ITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA V. CENTRAL INTELLIGENCE AGE' Defendant. s Civil Action No, 08-0708 OR X T OPPOSITION TO DEFEN }A\YS MOTION FOR SUMMARY JUD Plaintiff Jarn s Madison prefect ("J&1Iv-) I commenced t 1..s litigation pursuant to the ~~,=,a , ii tier t rvtA`) to obtain copies of internal Central intelligence Agency ("CIA") docunnen P,!-,aining to an internal review of the CIA's Inspector General, John Flelo-erson ("Helgerson" ). and of the Office of tire. Inspector General ("OIG"). The CIA has repeatedly delayed the processing of this requestsi;.nce October 2007, 2008. That response asserted that no documents Were located. The record reflects, however, t1 detailed affidavit oil the adequacy of the search or allow J1sIP -c conduct limited discovery to idea organization that was created in 1998 for the primary 1 ul is ues relating TO' se du at ng the public on to iCelli u ence gathering and operations; secrecy policies, national seerity, and goven e,_r wrongdoing. Much of the work uncle rakers by JMP involves litigation under FOIA. PROCEDURAL BACKGROUN,-D The factual and procedural background concerning IMP s FC1A request at issue in this litigation is set out in detail in the CIA's Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment (filed July 14, 2008)("CIA's Memo'), the CA's Declaration of Delores M. Nelson (dated July 14, 2005)("Nelson Declaration"), and JMP's Rule 56(f) Declaration of Bradley P. Moss. Esq. ("Moss Deel."), all of which are incorporated herein by reference.' ARGUMENT The CIA has moved fear su=nn2at~' judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Sutnmzra,judtnnent should be granted only if the moving party has entitled to ;,,A,..., material fact and that the moving parry is facts showing that ti r other competent evidence set in.g forth; specific slue for trial. Fed, R. Civ. P. 56(e): see Celotex The factual statements .,ade i t the CIA's Memo and the Nelson Declaration are incorporated only i.n r0i z ton to pages 2 through 3 and p ragraphs 15 e respectivelv respectively gh 19, and only to the extent that they do not constitute legal characterizations and conclusions. purposes of summary judgment. The burden rests upon the available to a defendant agency that has fully discharged its obligations Under FOIA. See \uolf v CIA, 473 F.3d 370, 374 (D.C. Cit. 2007); tVeisberm v U S Det?,t of Justice. 705 F.2d 1344, 1 350 (D.C. Cr, 1983). I:. THE CIA FAILED TO CONDUCT AN ADEQUATE SEARCH FOR RESPONSIVE RECORDS AND GENM, E ISSUES OF MATERIAL FACT RE IAIN PRECLUDING SU1LMARY JUDGMENT AT THIS TIME A. The CIA Is Unable At This Time To Demonstrate It Conducted An Adequate Search For Responsive Records There is no dispute regarding the overarching case law pertaining to the adequacy of reasonably calculated to uncover all relevant documents." Id, at 1351. See also Campbell applied to determine the adequacy of a search methodology consist.ent With congressional inter d a material doubt that it has conducted a search of disclosure), Put Wore succinctly. the CIA e a good faith effort to conduct a seardr for the requested 20 F.2d 57, 68 (D.C. Cit. I190)(citations omitted;. it is also undisputed that court may rely upon agency affidavits in adjudicating the adequacy of the search, Found;r-,a Church of Scientolo ti 'vat'1 Sec. Aeencv, 610 F.2d 824, 836 (D.C. Cir. 1979), so long as those affidavits are detailed, nonconclusory and submitted in good faith. Cola nd 607 F.2d 339, 352 (D.C. Cin j q78); pens v. Block. 684 F2d 121, 127 (D.C. Cir. 1982)(per curram)(,_ghii h.tin2 that affidavits must shed sufficient light on "scope and method of the search condu.Cted. by the agency"). "Even if these conditions are met the requestor may nonetheless produce counteavailir evidence, and if the sufficiency of the agency's identification or retrieval procedure is 610 F.2d at 836. See also id. at 837 ("To accept its claim of inability to retrieve the m - d i rese t - -- --- p ~ e s to Haase the specter of easy n of the Freedom of Information Act ... and if, in the face of well-defined advcrsai ' scrutiny of its search techniques, the Act Icy can so easily avoid But see Wilbu= v CIA, 355 F.3d 675. 678 (D.C. Cit. 2004)("Lii wise, the agency's failure to turn up a patticuiar document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested rec(n ds."}(citrsLions on Therefore, the central issue here is whether the specif ----~?~w ?....~~. Maio, ouuuwlnu C.ntiren of xctez v, 610 F .2d at 837, i =i ch would have bee.] found if the CIA had conducted a search for those documents in places in which they ur.' ;ti2zller v. 1..g Dgt j5 L,,. 779 F.2d 1378, 1385 (Sth Or, 4 ?5)(en2phasis added), cited with a~laroyal in hu side Gr Comotmller of t e Ct encv. 315 Fad 311. 315 (D.C. (-',ir. 2003). Ton the Nelson Declaration, the CIA asserts that since it: a) searched for responsive records in at least one (1) records system in which the identified scope of regulations would arguably be , taintained; and b) utilized at least seven (7) different search terms in conducting the search, there does not remain any substantial doubt as to the reasonableness Of ?he CIA's search and therefore no genuine issue of material fact exists. CIA's Memo at 9. conclusively that Inc CIA conducted a diligent search. As will be demonstrated infra. the bare-bones, boilerplate description. detailed. in the Nelson Declaration faits to provide this Court with any semblance of a comprehensive assessment of the adequacy of the CIA's c y required by the law of this Circuit JMP can also (Ictnonstrate that at issue here is not a "purely speculative" claim about the existence of responsive documens, see Ground Saucer Watch v. CIA, 692 F.2d 770, 771 {7).C. Cir. 1981). as JMP ca a :if. cou:rtervailmg evidence by way of at lea federal statute and CIA ofdiciai public statement, to sav nothing of pure common sense. At some appropriate time tile CI.A. may in fact be entitle as 11 matter of law. to summary judgment regardzhg the adequacy of its search, but based upon the current record-consisting of the Nelson Declaration-.-its not yet that time. B. The CIA s Nelson Declaration Is Insufficient For Purposes Of Summary Judgment, As It Fails To Provide This Court With Sufficient Factual Context Within Which To Evaluate The Adequacy Of The CIA's Search 1. Th yclsortD l,rations'DescriprtorrOf lneSearchTerms ,firedLocation, Par amend rs Used Ina The CIA's Search Is lhsn r ieiently Detailed find Leaves Open :Severn,? hridetztiary Gaps Agency affidavits must "explain ir.-. reasonable detail the scope and method of the search conducted by the agency [sufficient] to demonstrate comp iance with the 2007), c g ating Pern-, F,b-'. F.2d at 127, An affidavit that afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment" will be deemed insufficient. See Morley. 508 F.3d at 11 insufficient a CIA affidavit that failed to identify search terms, explain how the search was conducted in each component, or give an indication of what each component's search specifically yielded). Where. the agency's responses raise serious doubts as to the judgment in the govemment`s favor would usually be inappropriate. Perry, 684 F.2d at 127. The Nelson Declaration's description of the search conducted for responsive records consists largely of boilerplate language mostly devoid of any specific context. ` It first The courts have previously add essed agency reliance upon boil tplate affidavits-- alb en in the context of Exemption One invocations on the grounds of national security- a nd have permitted their use only to the extent that the agency's explanation was uffciently tailored to its determination. See Coldron v Den, o 74stiee v 10 F. Sapp, 2d 44, 53 (D.D.C. 2004)(cautho i na that "'he court is not to be a wet blanket" and its rev iew should not be vacuous. but ultimately conceding that the D,C. Circuit has permitted agency use of boileit late affidavits in. Circumstances where the agency explanations were sufficiently tailored to the specific redactions). See also SeIu eeker v Deo't of instiee, 254 x 36 162, 166 (D.C. Cir. 2001)(relating to documents identifying, confidential sources, disclosure should he expected to reveal the identity of a confidential human source or reveal the identify of a human int ll once source when the unauthorized disclosu of that source would clearly and demons rabiv dantaee the national security intcres,s c. rig United States by fainting the FBI's ability to continuously recruit sou-1-es for et rent and future use"): rlalnenn v CIA, 629 F.2d 144, 149 (D.C. Cir. 7980)(1 g ding the names of CIA attorneys disclosure would "tend to reveal details of [inteil acncej activities and that representatives ofhostile, foreign in elygence services vt0'king i' this country who, by" a variety of techniques, can undertake, courses of action to asc rIai i what other contacts, what other locations, and then arrive at determinations o'h'-her [the CIA's attorneys are] doing any other function for the Central Intelligence Arc cs )(internal quotations counted)i Coldiron, 31.0 F. Supp. 2d at 52-54 (nphoudmg the sufficiency of the FBI's affidavits only after concluding that the FBI indicated that disclosure of particular passages would make available the generically describes the organization of the CIA record systems. Nelson Deal. at It subsequently detai edures by which the CIA conducts a search for records. to at?1.0.Itisthese yrocedv,es mat are of considerable intporiance in assessing the adequacy of the CIA's search, as the. Nelson Declaration explains that each individual CIA component devises its own search strategy for processing a FOIA request. Each individual strategy includes "he identification of particular records systems that will. be The Nelson Declaration, however, does not even attempt to provide this Court wit, an explanation of the particu conducting the search, includutff which particular search teims_if different -were used by each separate component. Insica, sentences that rely heavily upon con at ?i 19 ("The CIA search rnclucz'ed ti a p., 1..11._,. -, . it condenses its entire explanation into two mere usory adjectives and ambiguous language. See id. Director of Central Intelligence Agency ("DCIA") ctnon L.enter (DAC"') and the independent offic s of the Office of Inspector Genera! ("GIG"), the Office of General Counsel ("OGC ). and the Office of Public Affairs (?OPA"), These offices used a t ar igFn; ~P7g. sternal review of operations,' :CIA's Inspector General,' 'John L. Helgerson,' `GIG,' 'Office of Inspector General,' `GIG internal review,' and `Deitz review-"')(emphasis added). This explanation leaves op 'n several evidentia`s gaps, i ludingg. for example: very criteria used by the FBI to decide what actions warranted an investigation and that disclosure would , ev. eai the cooperation of foreign'gove.. mments) I) whether the CIA search included components other than the DCIA area; 2) whether search within the DCIA area actually involved the record systems of the DAC, 0IG, 0GC and OPA; 3) whether other record systems within the DC1A area were searched: 4) which of the "example" search terms were used in which particular records systems: 5) what other search terms were used in conducting the search: and 6) whether and to what degree the CIA revised its initial search in light of infotnnadon discovered during Initial phases of the search. including information from relevant but non-responsive hed as Exhibit"1". Such e.identiars' gaps undermine this Court's ability to assess the adequacy of the CIA's search and render the OTIC'S appears 4irraal1v .nEfiStir r,? a~.ccu~ ~ti Inc 1JA,, L-trcujt in u;suable fro-III the Nelson Dectasation_ The [Dorms] Declaration i;x,utpo ates a general explanation of how the agency responds to all F101 requests, and after describing how a single FOIA request must be divvied tip between n lnpie component units within the CIA, Dorn states that `each component must then devise its own search strategy, which includes identi5'ing which of its records `1 stems to search as well as what search tools, indices, and temi,s to employ." But the two b , ` paragraphs in the Declaration explaining the search itself _- _u ?,? c.A},~~~ caGJ GllaSgeQ sponding to Morhe;'s FOIA request. Dom merely idcntifles the three vac = c omponen .,a,, conuuctea to The remainder of the Declaration describes only basic CIA Policy regarding 1 OIA responses and a description of the CIA's correspondence with Morley. leriev, 508 F .3d at 1122 (citat ohs omitted)(emphasis added). Similarly, the NcJson Declaration fails to identify which particular search terms wen e used in relation to the different nor ?ta, , ~_. The Ae/sor, ~eclara?ion Fails To Fxptain In ray Conte The .n easonaaleness P/ Its Imposifroz Of A.n The D.C. Circuit has previously addressed the issue of temporal hnits, such as a "time-of-request cut-off" policy, in the context of the adequacy of an agency's POIA search and has maintained that that the legal standard for a temporal limit is whether the "[imitation is consistent with the agency's duty to take reasonahie steps to ferret out I983)(emphasis Public Citizen inc. v, Den't. of State, 276 F.3d 634, the language of the FOIA and authoritative case late' establishes that the use of 's time-of- request cut-offs always reasonable), The burden of demonstrating that the imposition of a temporal limit upon a FOI4 search comports with the agency's obligation to conduct a 697 Fad at 1101. Therefore, in t_he context of a motion for suntan judgment, the agency is required to demo st ate that there is no genuine issue of mate The Nelson Declaration . for its part, fails to satisfi this burden. The CIA, by vi ements, appears ovember 5.2007. See CIA's Memo, Exhibit "B" ("Ex. B"). See also CIA's Memo, Exhibit "D" ("Ex. D"){-Our processing included a search of records as described in our 5 November 2007 accepta~ree lette xis the date ofthat leue )(emphasis added). The Nelson Declaration, however, does not address this issue in any way shape, or form, even if simply to reiterate that an "end- date" for responsive records was imposed. See Nelson Deci, at c 19. It does not verify vidence of the insufficiency of the Nelson Declaration. Even if the Nelson Declaration had addressed the issue, it is 71111"s position that uld be Unreasonable in light of the CIA's processing the search. During those eight months. ich the CIA apparently took no action on JMP's request, the "internal inquiry as concluded and changes to the operations of the OIC and the structure of the CIA's oversight of the OIG were implemented, See, e g, Exhibit "2"' 'CIA Tells of Changes for its Internal Inquiries"): Exhibit "3" ("CIA Sets Changes to IC`s O;~ersight, Adds Ombudsman"); Exhibit "4" ; der; ;ling the review). the CIA concluded its search in "early July 2008" and chose to rely upon the original. "end-date" OOf -November, 5, 210071. Nelson Decl, at' 19; Ex. D- By that point, the original "end-date" was no lot 'x reasonable and arrnmbty should have been, modified to comport with the changed circumsrau es This type of behavior was rejected as unreasonable by line D.C. Circuit in ic.C oboe" and is equally unreasonable here.. 6 The D-C Circuit highlighted that the CIA's imposition of an "end-date for its search to ,he first 35 days after the Jones or3n Tragedy, despite the agency's two-and-a-half yea delay in responding to h1 Gehe< request, was not reasonable and remanded that portion Of tale case with instt uctiotis to the CIA to "do better than it has thus far." ivlcCehee. 69-' F.2d at 1 103-04- 3. The.t,'elsorr Declaration's Inclusion Gfhrelerant POIR Procedures For reasons known only to the CIA, the Nelson. Declaration includes generic. e plate desc ptio is of CIA FOIA procedures penairing to the review of applicability of FOIA exemptions, ntakim, redactions to withhold exempted intt'onnation, and segregating exempt information. records, none of those three pro request. T t,e Nelson Declaration's inclusion of this information should raise concerns as to the CIA's good faith in its submission of an affidavit that is required to he "sufficientiv detailed" and tailored specifically to this particular FOIA litigation it, order to pros ide scarch, Moss Decl at 1 . In e`, the ff Nelson Declaration's description of the CIA's search consists solely of.. a) generic explanations rcgardina CIA's FOIA procedures (some irrelevant) and records systems; b) a recitation ofIMP's FCIA request correspondence with CIA; c) two vague and insufficient sentences system searched and search terms used; and d) one self scrvna s the CIA's search was records 7 See Nelson Decl. at Qf; 7-19. This description does not and cannot meet th CIA's burden of providing an affidavit that is "detailed- and "nonconclusorv.,, The CIA's tills ubst ntiated assertion that its search was diligent and adequate is of little consequence. or importance na assessing whether, for pumoser Of sununary judgment; he CIA has met its burden of demonstrating that there is no gene. t e issue of material fact egaadnxg the adequacy of its search. Indeed, the D.C. Circuit has held that "[rieliance on The Nelson Deeiaratioc' vague description of the search terms and location parameters utilized in conducting the search, as reasonableness underlying its iinposition of the original "end-date" and its inclusion of irrelevant FOIA procedures. renders it insufficiently detailed u, deprives this court of an adequate conteY in which to assess the adequacy of the CIA's search. Therefore, the CIA's Motion for Stmmatn. judgment ("CIA's Motion" minimum, submission by the CI.A of a more sufficiently additional searches and agency review. C. JMP Can Identify Countervailing Evidence In Light Of The Applicability Of The Central Intelligence Agency Act of 1949 And CIA Official Public Statements That Raise A Genuine issue Of laterial Fact Regarding The Ad ' equacy Of The CIA s Search While it is true that the inability of an agency to find a particular document does not generally render a search inadequate, in certain circumstances a court may place significant weight on the fact that a records search failed to rum up a particular document. U S ep??., 71 F.3d 885, 892, n./-7 (D.C. Cir. 1995). Sce also i{-ikot: to v I)e-t't of Sta c, 984 F.2d 461, 468 (D.C. Cir. sea hell). At a mini3um, JM can direct this Court's attention to at least one. federal --,&'-'v" "Y"'i u,c ue s to Create records responsive mandates that the OIG Prepare and submit to the CIA Director a classifi report ("the IG r(port") st nzmarizingr the OIG's activities dune affida\ to demonstrate agency compliance with the mandate of the FOIA does not, t o s ever, require courts to accept glib govemment assertions o_ complete disclosure or tsieval." Perry, 684 F._d at 126, preceding six-month period. 50 U.S.C. ? 403q(d)(i). The CIA Director subsequently is ad to transmit+t1tat report to the House Permanent Select Committee on Intelligence ("HPSCI") and the Senate Select Committee on intelligence ("SSCP') with any comments he may deem appropriate. Id. See Exhibit ,' ( Semiannual Report to the Director, Central Intelligence Agency: July _ Dece.nber 2005"), In its original POIA r ,uest, JMP provided the CIA ,k t_7 copies ofnews articles from authorized an "internal inquiry" into the activities of the OIG as a whole, and He]gerson "See also Exhibit "6" ("C;A Chief Defends Review on Agency's Inspector General"). As indicated in a routine briefing between Helgerson and SSCI staff members in October 200-1,. ti;c "i iaerm zl inquiry" began w. April 2007 and was being conducted by Director Hayden's senior counselor Robert L. Dietz. C un,ize CI'{ Director's Review Order"), In a pair of news articles dated Fehiu r%, 2, 2005, at which point 7t,IP's request was still being processed administratively, Director H at de.n verified that the "internal my ,in," had been concluded and that Heigerson had a r i ed to "tighter controls over the 01&s as?esti`_ative procedures, as well as the appointment of an ombudsman and a "c ,uality control officer' to oversee the actiti ti. s of the OiG. See Exhibit Exhibit `See also Exhibit "4" (detailing the job responsibilities of the "quality contras off er" and the ombudsman).' a1111 c.aa spoxesman Paul Girragliano. h) Office of Legislative Counsel for the IG reports that Director Hayden was required to provide to the HPSCI and SSCI , ~t ah Given that the "inteInai iiigquiIZ'" lasted approximately ten months and spanned tluee different reporting usterva?s, the O1G was obligated by the CIA Act to create at least three setniannual reports summarizing its activities that would have included references to the "internal inquiry," including: 1) efforts to cooperate with the inquiry, 2) discussions within OIG and with other CIA officials regarding possible changes to the. OIG's investigative procedures and the appointment of an ombudsman and a "quality control for this Court to con o locate these records is assuredly a relevant factor the reasonableness of the CIA's search.9 fight of the in ufficiency of the Nelson Declaration and JNlIP's identification of countervailing c demonstrating d form of at least one statutory provision that required the ;ids, the CIA has failed to meet its burden of al fact pertaining to the adequacy ,ore. the CL-Vs Motion should be denied pending. at a minintutn. "internal inquiry" with Director Hayden's senior counselor, Robert U. Dietz. On its own, this tailor' would not necessarily b ffi i e st= e ent to raii i se a genunessue of material fact, but when combined with the i- a tr lent ex lanati i h p ons n t e Nelso Dlifh necaraton o te C IA's search and the CI i.'s f artre to identify the three IG reports whose creation was star Itoriiv-mandated the f ac-, that -,he CIA could not identify a Iigle responsive record p td; n,r to this fins SuG a ion is 1,i,,-hty suspect. Tile fact that JMP s original FOIA r cones' does not s iecifically seems l _ - _ 1 records i)efYain2na to the urn to conc , unresponsive the 'ports created in compliance with the CIA Act. The D.C. Circuit has previously held that agencies have a duty to consume FOIA requests liberaify to ensure responsive records are of overlooked. See Z aie,tcia_I ce a. 180 F .3d at 326. A reasonable. liberal construction of ?MP's request for documents p r nine to discussions cone m ne mnfate an intana= r , , the decision to submission by the CIA o additional searches and agency review. II. ALTERNATIVELY, J Tp IS ENTITLED TO CONDUCT ?,Ii?IITED DISCOVERY TO ASCERTAIN THE ADEQUACY OF "I IE CIA'S SEARCH F 01A with reg. facts essential tojus o Fed. R. Civ. P. 56(f). id usethi tool in the proper judicial administration of tht ches that are inadequate. "If a pinny opposing [a motion affidavit that, for specified reasons, it cannot present ition, the court may:.. , order a continuance to enable ositions to be taken, or other discovery to he undertaken ... n most FOIA cases the government possesses all of the le to use diseoven- to u .cover- facts to determine the adequacy of the g,i `cna'-3ac'n.'s search or the exempt status of requested documents. See x%cisberg Webster , 749 F -2d 864. 868 (D C. Cir, 1944). ` C,, en the insufficiency of the Nelson Declaration and the subsequent inability by, the CIA to den,onstr 1999) d the factual data and logical inferences presented by While the court was addressing the particular right of the gOver nment to discovery. it affirmed that right by stating; that utilize Should be able to utilize the government. "like any other litigant," tie ru..s ofdiseove y. Weisberg 749 F.2d at 868. eons have interpreted this to ;Wean that "a FOIA U4LC 4 Morley v CIA, 2006 WI. 280645, i (D.D.C. Feb. 6. e Com , 663 F.2d 120, 127 (D.C_ CIr- 1980). cited bv in` r27 237 inn r. -- Weisbere, 705 F,2d at i 348 (pennitting discover' to resolve material tactual dispute regarding adequacy of Discovery does not need to be overly burdensome or excessive in scope. At a tni timunh, a limited number of inten-ogatories and depositions will be necessary to search methodology was reasonably calculated to uncover all responsive documents in ii? at of that information. Discovery would. address several, previously-identified gaps in the CIA's description of its search for records, including, for example: 1 which particular search terms were utilized with respect to different particular components or offices; 2) to what extent, if any, the CIA revised its sears osed as a limitation on the search- Moss Decl, at fl is. CONCLIJ:SIO\ For the foregoing reasons, the CIA's Motion for Summaiv Judgment should be denied, pending the submission by CIA's counsel of a inore, su?pcicntiy detailed affidavit, or, altem.tiveip, iMP should be permitted to undertake h titer discovery. Date: August 11, 2008 Bradley P. Moss, Faq. D.C. Barr975?.;0> Mark S. Zaid, Fsa_ D.C. Bar 4440532 Mark S. Zaid. P.C. 1250 C.on nec.ticut Al-enue, \,CV Suite 200 Washmaton, D.C. 20036 (202) 454-2809 (202) 330-5617 tax Brad@MarkZaid.com -t arki RIarkZa;d.coin Kelly Brian McClanahan Y'S Bar #4563748 Mark S. Zaid, F.C. 1250 Connecticut Avenue, \.\ Suite 200 Washington, D.C. 20036 Kel. .JamesMadisoiiProj ec t. orc' Of Counsel